Form 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 25, 2020

 

 

CORSAIR GAMING, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-39533   82-2335306

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification Number)

47100 Bayside Pkwy

Fremont, California 94538

(Address of principal executive offices, including Zip Code)

Registrant’s telephone number, including area code: (510) 657-8747

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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, $0.0001 par value per share

   CRSR    The Nasdaq Stock Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

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.     ☐

 

 

 


Item 1.01

Amendment to Material Agreement.

On September 25, 2020, Corsair Gaming, Inc. (the “Company”) entered into Amendment No. 6 to First Lien Credit and Guaranty Agreement (“Amendment No. 6”) with certain other parties thereto with respect to the Company’s credit facility contemplated thereby (the “Credit Facility”). Among other things, Amendment No. 6 released certain non-United States incorporated obligors (the “Released Borrowers” and the “Released Guarantors” as each term is defined in Amendment No. 6) from their obligations under the Credit Facility and released certain non-United States collateral under the Credit Facility (as described in Section 5 of Amendment No. 6). The Company assumed all obligations of each Released Borrower in its capacity as a “Borrower” under or in connection with the First Lien Credit and Guaranty Agreement. In addition to the foregoing, Amendment No. 6 also effected certain amendments to the representations and warranties and covenants under the First Lien Credit and Guaranty Agreement to, among other things, (i) apply only to the Company and its subsidiaries (subject to certain exceptions) and (ii) eliminate the requirement for lender calls. The foregoing description of Amendment No. 6 is qualified in its entirety by reference to Amendment No. 6 filed as Exhibit 10.1 hereto, which is incorporated herein by reference.

 

Item 9.01

Financial Statements and Exhibits.

 

Exhibit No.

  

Description

10.1    Amendment No. 6 to First Lien Credit and Guaranty Agreement


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

CORSAIR GAMING, INC.

Date: October 1, 2020

 

By:

 

/s/ Michael Potter

   

Michael Potter

   

Chief Financial Officer

EX-10.1

Exhibit 10.1

AMENDMENT NO. 6 TO FIRST LIEN CREDIT AND GUARANTY AGREEMENT

THIS AMENDMENT NO. 6 TO FIRST LIEN CREDIT AND GUARANTY AGREEMENT, dated as of September 25, 2020 (this “Sixth Amendment”), by and among CORSAIR GROUP (CAYMAN), LP, a Cayman Islands exempted limited partnership (“Holdings”), CORSAIR GAMING, INC., a Delaware corporation (the “U.S. Borrower”), CORSAIR ACQUISITION (LUX) S.À R.L., a Luxembourg private limited liability company (société à responsabilité limitée) with registered office at 48, Boulevard Grande-Duchesse Charlotte, L—1330 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Commerce and Companies register under number B216.833 (the “Lux Borrower”), CORSAIR HOLDINGS (HONG KONG) LIMITED, a Hong Kong limited liability company (the “HK Borrower” and, together with the U.S. Borrower and the Lux Borrower, collectively, the “Borrowers”), CERTAIN SUBSIDIARIES OF HOLDINGS PARTY HERETO, as Guarantors, THE LENDERS PARTY HERETO and MACQUARIE CAPITAL FUNDING LLC, as administrative agent (in such capacity, together with its permitted successors and assigns in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, together with its permitted successors and assigns in such capacity, the “Collateral Agent”).

WHEREAS, reference is hereby made to the First Lien Credit and Guaranty Agreement, dated as of August 28, 2017 (as amended by that certain Amendment No. 1 to the First Lien Credit and Guaranty Agreement, dated as of October 3, 2017, Amendment No. 2 to the First Lien Credit and Guaranty Agreement, dated as of March 29, 2018, Amendment No. 3 to the First Lien Credit and Guaranty Agreement, dated as of April 27, 2018, Amendment No. 4 to the First Lien Credit and Guaranty Agreement, dated as of October 11, 2018, Amendment No. 5 to the First Lien Credit and Guaranty Agreement, dated as of December 19, 2019, and as further amended, restated, supplemented and/or otherwise modified prior to the date hereof, the “Credit Agreement”), by and among Holdings, the Borrowers, LLC Subsidiary, certain Subsidiaries of Holdings party thereto, as Guarantors, the Lenders party thereto from time to time, the Administrative Agent and the Collateral Agent; and

WHEREAS, the Credit Parties have requested that the Administrative Agent and the Collateral Agent amend certain provisions of the Credit Agreement, in accordance with and subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein that is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement shall, as of and after the Sixth Amendment Effective Date (as defined below), refer to the Credit Agreement as amended by this Sixth Amendment (the “Amended Credit Agreement”).

SECTION 2. Amendments to Credit Agreement. Effective upon the Sixth Amendment Effective Date (as defined below), the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as and to the extent set forth in the form attached as Annex A hereto.


SECTION 3. Amendments to Schedules to Credit Agreement. Effective upon the Sixth Amendment Effective Date, Schedule 4.2 to the Credit Agreement is hereby amended and restated in its entirety as Annex B hereto.

SECTION 4. Releases of Credit Parties. Effective as of the Sixth Amendment Effective Date:

(a) Each of Lux Borrower and HK Borrower (each a “Released Borrower” and, collectively, the “Released Borrowers”) is automatically released as a “Borrower” under the Credit Agreement and the other Credit Documents and is discharged and released in full from all obligations with respect to the Credit Agreement and the other Credit Documents (each a “Borrower Release” and, collectively, the “Borrower Releases”); provided that no Borrower Release shall affect any obligations and indemnities of any Released Borrower under the Credit Documents which by their express terms survive the termination of the Credit Agreement and any of the other Credit Documents.

(b) Each of Holdings, LLC Subsidiary, Lux Holdco, Corsair Components Coöperatief U.A., Corsair (Hong Kong) Limited and Corsair Memory B.V. (each a “Released Guarantor” and, collectively, the “Released Guarantors”) is automatically released as a “Guarantor” under the Credit Agreement and the other Credit Documents and is discharged and released in full from all obligations with respect to the Credit Agreement and the other Credit Documents (each a “Guarantor Release” and, collectively, the “Guarantor Releases”); provided that no Guarantor Release shall affect any obligations and indemnities of any Released Guarantor under the Credit Documents which by their express terms survive the termination of the Credit Agreement and any of the other Credit Documents.

(c) Each Released Borrower and each Released Guarantor releases and discharges each Agent and each Lender, their participants, and their successors and assigns, from all claims, demands, accounts and actions, in each case based upon or arising out of the Credit Documents, that such Released Borrower or Released Guarantor, as applicable, at any prior time had or as of the date hereof has against any Agent or any Lender; provided that the foregoing release shall not excuse any Agent, Lender or other Secured Party from the performance of its obligations under this Sixth Amendment.

SECTION 5. Terminations and Release of Liens. Effective as of the Sixth Amendment Effective Date:

(a) The Limited Recourse Pledge and Security Agreement among Holdings, LLC Subsidiary and the Collateral Agent is terminated and such Limited Recourse Pledge and Security Agreement shall be no further force and effect.

(b) All Liens in favor of any Agent or Secured Party on assets of any Released Borrower or any Released Guarantor pursuant to any Credit Document are hereby terminated and released, without recourse and without any representation or warranty of any kind, express or implied.

(c) Each Collateral Agent agrees, following the Sixth Amendment Effective Date, to execute and deliver (i) UCC-3 termination statements in respect of the financing statements filed in favor of the Collateral Agent against Holdings and LLC Subsidiary (it being understood and agreed that the Released Guarantors and their respective attorneys and designees shall be authorized to file such UCC-3 termination statements), (ii) any deeds of release, termination agreements, or other applicable release documents with respect to the Foreign Collateral Documents necessary to terminate and release all Liens under such Foreign Collateral Documents and (iii) such other instruments and documents, and take such

 

2


further action, as the U.S. Borrower may reasonably request to effect or evidence the termination of such Collateral Agent’s security interest in and lien on the assets of any Released Borrower or Released Guarantor, but without recourse, representation or warranty of any kind, express or implied, and at the sole cost and expense of the U.S. Borrower.

SECTION 6. Severability. If any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

SECTION 7. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Sixth Amendment.

SECTION 8. Entire Agreement. This Sixth Amendment, the Amended Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

SECTION 9. Ratification and Reaffirmation.

(a) Each Remaining Credit Party (as defined below) hereto hereby ratifies and reaffirms, immediately after giving effect to this Sixth Amendment, (i) its Obligations under the Amended Credit Agreement and each of the other Credit Documents to which it is a party and all of its covenants, duties, guarantees, indemnities, indebtedness and liabilities under the Amended Credit Agreement and the other Credit Documents to which it is a party and (ii) the Liens and security interests granted thereby in favor of the Collateral Agent and the Lenders pursuant to each Collateral Document, which Liens and security interests continue to secure the Obligations (as defined in the Amended Credit Agreement) and each Remaining Credit Party hereto confirms that its secured liabilities (however described in the Collateral Documents) cover the Obligations (which include for the avoidance of doubt each Parallel Liability), in each case, on and subject to the terms and conditions set forth in the Amended Credit Agreement and the other Credit Documents and will have and maintain the ranking required under the Collateral Documents (if any).

(b) Subject to Sections 4 and 5 hereof, the Credit Agreement and each of the other Credit Documents, as specifically amended by this Sixth Amendment, are and, notwithstanding this Sixth Amendment, continue to be in full force and effect and are hereby in all respects ratified and confirmed (as expressly amended hereby to the extent so amended). Without limiting the generality of the foregoing, except as specifically amended by this Sixth Amendment otherwise and except for those Collateral Documents terminated and Collateral released in accordance with Section 5 hereof, the Collateral Documents and all of the Collateral described therein, notwithstanding this Sixth Amendment, continue as of the Sixth Amendment Effective Date to secure the payment of all Obligations of the Remaining Credit Parties, as amended by this Sixth Amendment.

(c) The execution, delivery and effectiveness of this Sixth Amendment 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 Credit Documents, nor constitute a waiver of any provision of any of the Credit Documents. On and after the Sixth Amendment Effective Date, this Sixth Amendment shall for all purposes constitute a Credit Document.

 

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(d) Each Borrower hereby acknowledges and agrees that, notwithstanding anything to the contrary in the Credit Agreement, the Amended Credit Agreement and/or any other Credit Document, on and after the Sixth Effective Amendment Date, the U.S. Borrower shall assume all rights, obligations and liabilities of each Released Borrower in its capacity as a “Borrower” under or in connection with the Credit Agreement and/or any other Credit Document (for the avoidance of doubt, on and after the Sixth Effective Amendment Date, the U.S. Borrower shall have sole liability for (i) all outstanding Loans, as the sole Borrower under the Amended Credit Agreement and (ii) all outstanding Letters of Credit, as the sole account holder thereof under the Amended Credit Agreement, in each case, including, without limitation, all Obligations for the punctual payment when due of the principal, interest, premium, if any, and fees owing in respect thereof from time to time pursuant to the terms of the Amended Credit Agreement).

SECTION 10. Representations and Warranties. The Remaining Credit Parties each hereby represent and warrant to the Agents and the Lenders, as of the date hereof, that:

(a) Each Remaining Credit Party party hereto has all requisite corporate (or equivalent) power and authority to enter into this Sixth Amendment and consummate the transactions contemplated hereby. The execution, delivery and performance of this Sixth Amendment and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of each Remaining Credit Party party hereto. This Sixth Amendment has been duly executed and delivered by each Remaining Credit Party party hereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, except as may be limited by Debtor Relief Laws, by the principle of good faith and fair dealing, or limiting creditors’ rights generally or by equitable principles relating to enforceability.

(b) The execution, delivery and performance of this Sixth Amendment and the consummation of the transactions contemplated hereby by each Remaining Credit Party party hereto do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority or other third Person, except (i) such as have been obtained and are in full force and effect, (ii) for filings and recordings with respect to the Collateral to be made or otherwise that have been delivered to the Collateral Agent for filing and/or recordation and (iii) those approvals, consents, registrations or other actions or notices, the failure of which to obtain or make could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(c) The execution, delivery and performance of this Sixth Amendment by each Remaining Credit Party party hereto and the consummation of the transactions contemplated hereby do not and will not (i) violate any of the Organizational Documents of such Credit Party; (ii) violate any provision of any Law applicable to or otherwise binding on the U.S. Borrower or any of the Restricted Subsidiaries, except to the extent such violation, either individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect or (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of the U.S. Borrower or any of the Restricted Subsidiaries (other than any Liens created under any of the Credit Documents in favor of the Collateral Agent, on behalf of the Secured Parties, or other Permitted Liens).

(d) All of the representations and warranties contained herein and in Section 4 of the Credit Agreement and in each other Credit Document (in each case, as amended by this Sixth Amendment) are true and correct in all material respects both immediately before and immediately after giving effect to this Sixth Amendment (except for those representations and warranties that are qualified by materiality,

 

4


which are true and correct in all respects) on and as of the Sixth Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which are true and correct in all respects) on and as of such earlier date.

(e) Both immediately before and immediately after giving effect to this Sixth Amendment, no Default or Event of Default has occurred and is continuing.

(f) On or as of the Sixth Amendment Effective Date, (i) the Qualified Borrower IPO will have been consummated and (ii) the transactions described in clauses (e) and (f) of the definition of Qualified Borrower IPO/Reorganization Transactions will have been consummated.

(g) Immediately after giving effect to the Qualified Borrower IPO, the other Qualified Borrower IPO/Reorganization Transactions and this Sixth Amendment, on the Sixth Amendment Effective Date, (i) the organizational structure and capital structure of the U.S. Borrower and its Subsidiaries, in each case, will be as set forth on Schedule 4.2 to the Amended Credit Agreement and (ii) each Foreign Subsidiary of the U.S. Borrower will be an Excluded Subsidiary.

SECTION 11. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. The terms of Sections 10.14, 10.15 and 10.16 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

SECTION 12. Counterparts. This Sixth Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Sixth Amendment by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Sixth Amendment.

SECTION 13. Effectiveness. This Sixth Amendment shall become effective on the first date on which each of the following conditions shall have been satisfied or waived (the “Sixth Amendment Effective Date”):

(a) the Administrative Agent shall have received from the Borrowers, Holdings, each other Guarantor (other than LLC Subsidiary), the Administrative Agent and the Collateral Agent, a duly executed counterpart of this Sixth Amendment signed on behalf of such party;

(b) the Administrative Agent shall have received an executed copy of a certificate from an Authorized Officer of each of the U.S. Borrower, Corsair Components, Inc., Corsair Memory Inc., Scuf Holdings, Inc., Scuf Gaming, Inc., Scuf Gaming International LLC and Origin PC, LLC (each, a “Remaining Credit Party” and, collectively, the “Remaining Credit Parties”), together with all applicable attachments, certifying as to the following immediately after giving effect to the Qualified Borrower IPO and the other Qualified Borrower IPO/Reorganization Transactions (provided that each such certificate can certify that there have been no changes to the documents or items described in the following clauses (i) and/or (ii) with respect to such Credit Party since the date of the last delivery thereof to the Administrative Agent):

 

5


(i) Organizational Documents. Attached thereto is a copy of each Organizational Document of such Credit Party as then in effect and executed and delivered by each party thereto and, to the extent applicable, certified as of a recent date by the appropriate governmental official;

(ii) Signature and Incumbency. Set forth therein are the specimen signature and incumbency of the officers or other authorized representatives of such Credit Party authorized to execute the Sixth Amendment and each other Credit Document to which it is a party;

(iii) Resolutions. Attached thereto are copies of resolutions of the Board of Directors or other governing party of such Credit Party, approving and authorizing (A) the execution, delivery and performance of the Sixth Amendment Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Sixth Amendment Effective Date, (B) in the case of the U.S. Borrower, the Qualified Borrower IPO and (C) the other Qualified Borrower IPO/Reorganization Transactions, as applicable, in each case, certified as of the Sixth Amendment Effective Date as being in full force and effect without modification or amendment; and

(iv) Good Standing Certificates. Attached thereto is a good standing certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of incorporation, registration, organization or formation, dated a recent date;

(c) the Administrative Agent shall have received from the U.S. Borrower a duly executed solvency certificate substantially in the form of Exhibit L to the Credit Agreement, dated the Sixth Amendment Effective Date, certifying that, immediately after giving effect to (i) the Sixth Amendment, (ii) the Qualified Borrower IPO, and (iii) the other Qualified Borrower IPO/Reorganization Transactions, the U.S. Borrower and its Subsidiaries, on a consolidated basis, are Solvent;

(d) the Administrative Agent shall have received a certificate of an Authorized Officer of the U.S. Borrower certifying as to compliance with each of clauses (a) through (g) of Section 10 of this Sixth Amendment;

(e) the Administrative Agent shall have received a customary written opinion of Jones Day, special U.S. counsel for the Remaining Credit Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders, and dated the Sixth Amendment Effective Date; and

(f) all reasonable and documented expenses and other compensation payable to the Agents pursuant to Section 10.2 of the Credit Agreement or otherwise, shall have been paid to the extent earned, due and owing and otherwise reimbursable pursuant to the terms thereof and, in the case of expenses, invoiced at least two Business Days prior to the Sixth Amendment Effective Date.

[SIGNATURE PAGES FOLLOW]

 

6


IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

CORSAIR GROUP (CAYMAN), LP, as Holdings and a Guarantor

By: EagleTree-Carbide (GP), LLC, its general partner

By:

  /s/ George L. Majoros, Jr.

Name:

  George L. Majoros, Jr.

Title:

  Co-Managing Member

By:

  /s/ Anup Bagaria

Name:

 

Anup Bagaria

Title:

  Co-Managing Member
CORSAIR GAMING, INC., as a Borrower

By:

 

/s/ Michael Potter

Name:

  Michael Potter

Title:

  Chief Financial Officer
CORSAIR ACQUISITION (LUX) S.À R.L., as a Borrower

By:

 

/s/ Robert van’t Hoeft

Name:

  Robert van’t Hoeft

Title:

  Class A Manager

By:

 

/s/ Andrew J. Paul

Name:

  Andrew J. Paul

Title:

  Class B Manager
Corsair Acquisition (Lux) S.à r.l.,
société à responsabilité limitée
Registered Office: 48, boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg, R.C.S.: B 216.833

CORSAIR HOLDINGS (HONG KONG) LIMITED, as a Borrower

By:

 

/s/ Michael Potter

Name:

  Michael Potter

Title:

 

Chief Financial Officer

[Signature page to Amendment No. 6 to First Lien Credit and Guaranty Agreement]


CORSAIR HOLDINGS (LUX) S.À R.L,
as a Guarantor

By:

  /s/ Jooest Mees
  Name: Jooest Mees
  Title Class A Manager

By:

  /s/ Andrew J. Paul
  Name: Andrew J. Paul
  Title Class B Manager
Corsair Holdings (Lux) S.à r.l.,
société à responsabilité limitée
Registered Office: 48, boulevard Grande-Duchesse
Charlotte, L-1330 Luxembourg, R.C.S.: B 216.685
CORSAIR COMPONENTS, INC.,
as a Guarantor

By:

  /s/ Michael Potter
  Name: Michael Potter
  Title Chief Financial Officer
CORSAIR MEMORY, INC.,
as a Guarantor

By:

  /s/ Michael Potter
  Name: Michael Potter
  Title Chief Financial Officer
CORSAIR (HONG KONG) LIMITED,
as a Guarantor

By:

  /s/ Michael Potter
  Name: Michael Potter
  Title Chief Financial Officer

[Signature page to Amendment No. 6 to First Lien Credit and Guaranty Agreement]


CORSAIR COMPONENTS COÖPERATIEF U.A., as a Guarantor
By:   /s/ Robert van’t Hoeft
  Name: Robert van’t Hoeft
  Title Class A Manager
CORSAIR MEMORY B.V.,
as a Guarantor
By:   /s/ Michael Potter
  Name: Michael Potter
  Title Chief Financial Officer
ORIGIN PC, LLC,
as a Guarantor
By:   /s/ Andrew J. Paul
  Name: Andrew J. Paul
  Title Class B Manager

[Signature page to Amendment No. 6 to First Lien Credit and Guaranty Agreement]


SCUF HOLDINGS, INC.,
as a Guarantor
By:   /s/ Andrew J. Paul
  Name: Andrew J. Paul
  Title Class B Manager
SCUF GAMING, INC.,
as a Guarantor
By:   /s/ Andrew J. Paul
  Name: Andrew J. Paul
  Title Class B Manager
SCUF GAMING INTERNATIONAL LLC,
as a Guarantor
By:   /s/ Andrew J. Paul
  Name: Andrew J. Paul
  Title Class B Manager

[Signature page to Amendment No. 6 to First Lien Credit and Guaranty Agreement]


MACQUARIE CAPITAL FUNDING LLC, as Administrative Agent and Collateral Agent
By:   /s/ Lisa Grushkin
  Name: Lisa Grushkin
  Title Managing Director
By:   /s/ Ayesha Farooqi
  Name: Ayesha Farooqi
  Title Managing Director

[Signature page to Amendment No. 6 to First Lien Credit and Guaranty Agreement]


ANNEX A

Amended Credit Agreement

[See attached]


Conformed through:

Amendment No. 1, dated as of October 3, 2017

Amendment No. 2, dated as of March 29, 2018

Amendment No. 3, dated as of April 27, 2018

Amendment No. 4, dated as of October 11, 2018

Amendment No. 5, dated as of December 19, 2019

Amendment No. 6, dated as of September 25, 2020

 

 

 

FIRST LIEN CREDIT AND GUARANTY AGREEMENT

Dated as of August 28, 2017

among

CORSAIR GROUP (CAYMAN), LP,

as Holdings,

CORSAIR GAMING, INC.,

CORSAIR ACQUISITION (LUX) S.À R.L.,

and

CORSAIR HOLDINGS (HONG KONG) LIMITED

as BorrowersBorrower,

CORSAIR GROUP (US), LLC

and

CERTAIN OTHER SUBSIDIARIES OF HOLDINGS PARTY HERETOTHE BORROWER,

as Guarantors,

THE LENDERS PARTY HERETO

and

MACQUARIE CAPITAL FUNDING LLC,

as Administrative Agent and Collateral Agent

 

 

BNP PARIBAS SECURITIES CORP. AND

FIFTH THIRD BANK,

as Syndication Agents

 

 

MACQUARIE CAPITAL (USA) INC. AND

BNP PARIBAS SECURITIES CORP.,

as Joint Lead Arrangers and Bookrunners

 

 

 

 

 


TABLE OF CONTENTS

 

         Page  

SECTION 1.

  DEFINITIONS AND INTERPRETATION      22  

1.1

  Definitions      22  

1.2

  Accounting Terms      6566  

1.3

  Interpretation, Etc      6566  

1.4

  Certifications      6667  

1.5

  Timing of Performance      6667  

1.6

  Cashless Rollovers      6667  

1.7

  Pro Forma Calculations and Adjustments      6667  

1.8

  Currency Equivalents, Generally      6768  

1.9

  Available Amount Transactions      6769  

1.10

  Luxembourg Terms 68Financial Definitions      69  

1.11

  Dutch Terms 68Mandatory Prepayments      69  

SECTION 2.

  LOANS AND LETTERS OF CREDIT      6971  

2.1

  Term Loans      6971  

2.2

  Revolving Loans      7072  

2.3

  Swing Line Loans      7173  

2.4

  Letters of Credit      7476  

2.5

  Pro Rata Shares; Availability of Funds      8082  

2.6

  Use of Proceeds      8082  

2.7

  Evidence of Debt; Notes      8183  

2.8

  Interest on Loans      8183  

2.9

  Conversion and Continuation      8385  

2.10

  Default Interest      8486  

2.11

  Fees      8486  

2.12

  Installments      8587  

2.13

  Voluntary Prepayments/Commitment Reductions      8689  

2.14

  Mandatory Prepayments/Commitment Reductions      8789  

2.15

  Application of Prepayments      9092  

2.16

  General Provisions Regarding Payments      9193  

2.17

  Ratable Sharing      9395  

2.18

  Making or Maintaining Eurodollar Loans      9395  

2.19

  Increased Costs; Capital Adequacy      9698  

2.20

  Taxes; Withholding, Etc.      98100  

2.21

  Obligation to Mitigate      101103  

2.22

  Defaulting Lenders      101103  

2.23

  Replacement Lenders      104106  

2.24

  Extension of Loans      105106  

2.25

  Incremental Loans      107109  

2.26

  Refinancing Facilities      111113  

2.27

  Joint and Several Liability of the Borrowers; Borrower Representative 112[Reserved]      114  

2.28

  Currency Equivalents      113115  

2.29

  Designation of Borrowers      115  

SECTION 3.

  CONDITIONS PRECEDENT      115116  

3.1

  Closing Date      115116  

3.2

  Conditions to Each Subsequent Credit Extension      120122  

 

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SECTION 4.

  REPRESENTATIONS AND WARRANTIES      121123  

4.1

  Organization; Required Power and Authority; Qualification      121123  

4.2

  Equity Interests and Ownership      121123  

4.3

  Due Authorization      122123  

4.4

  No Conflict      122123  

4.5

  Third Party Consents      122124  

4.6

  Binding Obligation      122124  

4.7

  Historical Financial Statements and Pro Forma Balance Sheet      123124  

4.8

  Projections      123125  

4.9

  No Material Adverse Change      123125  

4.10

  Adverse Proceedings      123125  

4.11

  Payment of Taxes      123125  

4.12

  Title      123125  

4.13

  Real Estate Assets      124125  

4.14

  Environmental Matters      124126  

4.15

  No Defaults      124126  

4.16

  Investment Company Regulation      125127  

4.17

  Margin Stock      125127  

4.18

  Employee Matters      125127  

4.19

  Employee Benefit Plans      125127  

4.20

  Certain Fees      126128  

4.21

  Solvency      126128  

4.22

  Compliance with Laws      126128  

4.23

  Disclosure      127129  

4.24

  Collateral      127129  

4.25

  Status as Senior Indebtedness      127129  

4.26

  Closing Date Acquisition Documents      127129  

4.27

  Intellectual Property; Licenses, Etc.      127129  

4.28

  Use of Proceeds      128130  

4.29

  Centre of Main Interests and Establishments      128130  

4.30

  UK Pensions      128130  

SECTION 5.

  AFFIRMATIVE COVENANTS      128130  

5.1

  Financial Statements and Other Reports and Notices      128130  

5.2

  Existence      133136  

5.3

  Payment of Taxes and Claims      134136  

5.4

  Maintenance of Properties      134136  

5.5

  Insurance      134136  

5.6

  Books and Records      135137  

5.7

  Inspections      135137  

5.8

  Lenders Calls 135[Reserved]      137  

5.9

  Compliance with Laws      135138  

5.10

  Environmental      136138  

5.11

  Subsidiaries      136138  

5.12

  Material Real Estate Assets      137140  

5.13

  Further Assurances      139141  

5.14

  [Reserved]      139141  

5.15

  Unrestricted Subsidiaries      139141  

5.16

  UK Pensions 140[Reserved]      142  

 

ii


5.17

  Syndication Cooperation 140[Reserved]      142  

5.18

  Use of Proceeds      140143  

5.19

  Beneficial Ownership Regulation      140143  

5.20

  Centre of Main Interests and Establishments      140143  

5.21

  Maintenance of Ratings      141143  

5.22

  Post-Closing Covenants      141143  

5.23

  2L IPO Prepayment      141143  

5.24

  Specified Equity Contribution      141143  

SECTION 6.

  NEGATIVE COVENANTS      141144  

6.1

  Indebtedness      141144  

6.2

  Liens      145148  

6.3

  Payments and Prepayments of Certain Indebtedness      147149  

6.4

  Restricted Payments      148150  

6.5

  Burdensome Agreements      151153  

6.6

  Investments      152155  

6.7

  Financial Covenant      155157  

6.8

  Fundamental Changes      155158  

6.9

  Asset Sales      156158  

6.10

  Sales and Lease-Backs      157160  

6.11

  Transactions with Affiliates      158160  

6.12

  Conduct of Business      159161  

6.13

  Permitted Activities of Holdings, LLC Subsidiary and Lux Holdco 159[Reserved]      161  

6.14

  Amendments or Waivers of Organizational Documents and Certain Other Documents      160162  

6.15

  Fiscal Year      160163  

6.16

  Use of Proceeds      160163  

6.17

  Prohibition on Division/Series Transaction      160163  

SECTION 7.

  GUARANTY      160163  

7.1

  Guaranty of the Obligations      160163  

7.2

  Contribution by Guarantors      161163  

7.3

  Payment by Guarantors      161164  

7.4

  Liability of Guarantors Absolute      162164  

7.5

  Waivers by Guarantors      163166  

7.6

  Guarantors’ Rights of Subrogation, Contribution, Etc      164167  

7.7

  Subordination of Other Obligations      165167  

7.8

  Continuing Guaranty      165167  

7.9

  Authority of Guarantors or the BorrowersBorrower      165167  

7.10

  Financial Condition of the BorrowersBorrower      165168  

7.11

  Bankruptcy, Etc.      165168  

7.12

  Discharge of Guaranty Upon Sale of Guarantor      166169  

7.13

  Keepwell Agreement      166169  

7.14

  Limited Recourse to Holdings and LLC Subsidiary 166[Reserved]      169  

7.15

  Luxembourg Limitation Language      167169  

SECTION 8.

  EVENTS OF DEFAULT      167170  

8.1

  Events of Default      167170  

8.2

  Acceleration      170173  

8.3

  Application of Payments and Proceeds      171174  

8.4

  Cure Right      172174  

8.5

  Exclusion of Immaterial Subsidiaries      172175  

 

iii


SECTION 9.

  AGENTS      173175  

9.1

  Appointment and Authority      173175  

9.2

  Rights as a Lender      173176  

9.3

  Exculpatory Provisions      174176  

9.4

  Reliance by Agents      175178  

9.5

  Delegation of Duties      175178  

9.6

  Resignation of the Administrative Agent      176178  

9.7

  Non-Reliance on Agents and Other Lenders      177179  

9.8

  No Other Duties, Etc      177180  

9.9

  Administrative Agent May File Proofs of Claim      178180  

9.10

  Collateral Documents and Guaranty      178181  

9.11

  Withholding Taxes      179182  

9.12

  Collateral Held in Trust      180183  

SECTION 10.

  MISCELLANEOUS      180183  

10.1

  Notices      180183  

10.2

  Expenses      181184  

10.3

  Indemnity; Certain Waivers      182185  

10.4

  Set-Off      184186  

10.5

  Amendments and Waivers      184187  

10.6

  Successors and Assigns; Participations      188191  

10.7

  Independence of Covenants      197200  

10.8

  Survival of Representations, Warranties and Agreements      197200  

10.9

  No Waiver; Remedies Cumulative      197200  

10.10

  Marshalling; Payments Set Aside      197200  

10.11

  Severability      198200  

10.12

  Obligations Several; Independent Nature of the Lenders’ Rights      198201  

10.13

  Headings      198201  

10.14

  Governing Law      198201  

10.15

  Consent to Jurisdiction      198201  

10.16

  WAIVER OF JURY TRIAL      199202  

10.17

  Confidentiality      199202  

10.18

  Usury Savings Clause      200203  

10.19

  No Strict Construction      201203  

10.20

  Counterparts; Effectiveness      201203  

10.21

  Integration      201203  

10.22

  No Fiduciary Duty      201204  

10.23

  PATRIOT Act      201204  

10.24

  Judgment Currency      202204  

10.25

  Acknowledgement and Consent to Bail-In of EEA Financial Institutions      202204  

10.26

  Intercreditor Agreement 202Agreements      205  

10.27

  Parallel Liability 203[Reserved]      206  

10.28

  Process AgentsAgent      203206  

10.29

  Waiver of Sovereign Immunity      204206  

10.30

  Luxembourg 205[Reserved]      206  

10.31

  Certain ERISA Matters      205207  

 

iv


APPENDICES:    A-1    Term Loan Commitments
   A-2    Revolving Credit Commitments
   B    Notice Addresses
   C    Dutch Auction Procedures
SCHEDULES:    4.2    Equity Interests and Ownership; Organizational and Capital Structure
   4.13    Real Estate Assets
   4.20    Certain Fees
   5.22    Post-Closing Covenants
   6.1    Certain Indebtedness
   6.2    Certain Liens
   6.6    Certain Investments
   F-1    Closing Date Foreign Collateral Documents
   L-1    Existing Letters of Credit
EXHIBITS:    A-1    Form of Funding Notice
   A-2    Form of Conversion/Continuation Notice
   A-3    Form of Issuance Notice
   B-1    Form of Term Loan Note
   B-2    Form of Revolving Loan Note
   B-3    Form of Swing Line Note
   B-4    Form of Incremental Term Loan Note
   C-1    Form of Compliance Certificate
   C-2    Form of Pro Forma Compliance Certificate
   D-1    Form of US Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For US Federal Income Tax Purposes)
   D-2    Form of US Tax Compliance Certificate (For Non-US Participants That Are Not Partnerships For US Federal Income Tax Purposes)
   D-3    Form of US Tax Compliance Certificate (For Non-US Participants That Are Partnerships For US Federal Income Tax Purposes)
   D-4    Form of US Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For US Federal Income Tax Purposes)
   E    Form of Assignment and Assumption Agreement
   F    Form of Closing Date Certificate
   G    Form of Counterpart Agreement
   H    Form of Pledge and Security Agreement
   I    Form of Limited Recourse Pledge and Security Agreement[Reserved]
   J    [Reserved]
   K    Form of Joinder Agreement
   L    Form of Solvency Certificate
   M    Form of Intercreditor Agreement
   N    Form of Borrower Joinder

 

v


FIRST LIEN CREDIT AND GUARANTY AGREEMENT

This FIRST LIEN CREDIT AND GUARANTY AGREEMENT, dated as of August 28, 2017 (this “Agreement”), is entered into by and among CORSAIR GROUP (CAYMAN), LP, a Cayman Islands exempted limited partnership acting by its general partner EagleTree-Carbide (GP), LLC, a Cayman Islands limited liability company (“Holdings”), CORSAIR GAMING, INC., a Delaware corporation (“Borrower” or “U.S. Borrower”), CORSAIR ACQUISITION (LUX) S.À R.L., a Luxembourg private limited liability company (société à responsabilité limitée), with a registered office at 48, boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies under number B216.833 (“Lux Borrower”), CORSAIR HOLDINGS (HONG KONG) LIMITED, a Hong Kong limited liability company (the “HK Borrower” and, together with U.S. Borrower, Lux Borrower and each other Person that becomes a “Borrower” hereunder, each a “Borrower” and collectively, the “Borrowers”), CORSAIR GROUP (US), LLC, a Delaware limited liability company, and CERTAIN OTHERCERTAIN SUBSIDIARIES OF HOLDINGSTHE BORROWER PARTY HERETO, as Guarantors, THE LENDERS PARTY HERETO, and MACQUARIE CAPITAL FUNDING LLC, as administrative agent (in such capacity, together with its permitted successors and assigns in such capacity, the “Administrative Agent”), and as a collateral agent (in such capacity, together with its permitted successors and assigns in such capacity, the “Collateral Agent”).

RECITALS:

WHEREAS, capitalized terms used in these recitals shall have the respective meanings set forth for such terms in Section 1.1;

WHEREAS, pursuant to that certain Stock Purchase Agreement, dated as of July 22, 2017 (as amended or otherwise modified to the date hereof, and including all exhibits and schedules thereto, the “Closing Date Acquisition Agreement”), by and among Corsair Components (Cayman) Ltd., an exempted company incorporated in the Cayman Islands with limited liability (“Seller 1”), Corsair Components (Cayman) II Ltd., an exempted company incorporated in the Cayman Islands with limited liability, Holdings, U.S.the Borrower and Lux Borrower, U.S.Subsidiary, the Borrower and Lux Borrower will directly or indirectly acquirecertain of the Released Borrowers acquired all of the Equity Interests of the Targets (the “Closing Date Acquisition”);

WHEREAS, the Lenders have agreed to extend certain credit facilities to the Borrower and the Released Borrowers, in an aggregate amount of $285,000,000, consisting of term loans in an aggregate principal amount of $235,000,000, the proceeds of which will be used to consummate the Closing Date Acquisition and the other Related Transactions and Revolving Credit Commitments in an aggregate principal amount of $50,000,000, the proceeds of which may be used, in part, to consummate the Related Transactions, and for general corporate purposes, including Permitted Acquisitions, in each case, to the extent permitted in accordance with the terms of this Agreement;

WHEREAS, the Guarantors haveand the Released Guarantors agreed to guarantee the obligations of the Borrower and the Released Borrowers hereunder;

WHEREAS, the Borrower, the Released Borrowers and, the Guarantors haveand the Released Guarantors agreed to secure their respective Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a First Priority Lien on substantially all of their respective assets, subject to the terms and conditions set forth in the Collateral Documents; and

WHEREAS, the Borrower, the Released Borrowers and, the Guarantors haveand the Released Guarantors requested that certain other lenders extend credit to the Borrower and the Released Borrowers on the Closing Date in the form of second lien term loans in an aggregate principal amount of $65,000,000 pursuant to the Second Lien Credit Agreement.


NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. DEFINITIONS AND INTERPRETATION

1.1 Definitions. The following terms used herein, including in the preamble, recitals, appendices, schedules and exhibits hereto, shall have the following meanings:

2015 Regulation” as defined in Section 4.29.

2018 Converting Term Lender” has the meaning assigned to such term in the Fourth Amendment.

2018 Replacement Term Loans” has the meaning assigned to such term in the Fourth Amendment.

2018 Replacement Term Loan Commitment” has the meaning assigned to such term in the Fourth Amendment.

2018 Replacement Term Lender” has the meaning assigned to such term in the Fourth Amendment.

2018 Replacement Term Loan Conversion Amount” shall mean, as to any 2018 Converting Term Lender, the amount determined by the Administrative Agent, the Borrower and the Released Borrowers as the final amount of such 2018 Converting Term Lender’s 2018 Replacement Term Loan Conversion on the Fourth Amendment Effective Date and notified to each such 2018 Converting Term Lender by the Administrative Agent on or prior to the Fourth Amendment Effective Date. The “2018 Replacement Term Loan Conversion Amount” of any 2018 Converting Term Lender shall not exceed (but may be less than) the outstanding principal amount of such 2018 Converting Term Lender’s Term Loans (determined immediately prior to the Fourth Amendment Effective Date). All such determinations made by the Administrative Agent and the Borrower and the Released Borrowers shall, absent manifest error, be final, conclusive and binding on the Borrower, the Released Borrowers and the Lenders, and the Administrative Agent, the Borrower and the Released Borrowers 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 Replacement Term Loan Conversion” has the meaning assigned to such term in the Fourth Amendment.

2019 Incremental Commitment Letter” means the 2019 First Lien Incremental Term Facility Commitment Letter, dated as of November 6, 2019, by and among Holdings, U.S. Borrower, Macquarie Capital Funding LLC, Macquarie Capital (USA) Inc., BNP Paribas and BNP Paribas Securities Corp., as amended by Amendment No. 1 thereto, dated as of December 9, 2019.

2019 Incremental Fee Letter” means the 2019 First Lien Incremental Term Facility Fee Letter, dated as of November 6, 2019, by and among Holdings, U.S. Borrower, Macquarie Capital Funding LLC, Macquarie Capital (USA) Inc., BNP Paribas and BNP Paribas Securities Corp., as amended by Amendment No. 1 thereto, dated as of December 19, 2019.

 

2


Acquired Business” means the Targets and their Subsidiaries.

Additional Debt Requirements” means the following requirements: (a) if such Indebtedness is secured, it shall not be secured by any assets or property other than Collateral securing the Obligations; (b) if such Indebtedness is guaranteed, it shall not be guaranteed by any Person other than a Guarantor (and any guaranty by Holdings or LLC Subsidiary shall be limited in recourse on the same basis as their Guaranty hereunder); (c) if such Indebtedness is secured by a first priority Lien on Collateral that is pari passu with the Lien securing the Obligations, (i) the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the then applicable Weighted Average Life to Maturity of the Term Loans with the latest Term Loan Maturity Date then in effect, (ii) such Indebtedness shall not have a final scheduled maturity or have scheduled amortization or payments of principal (other than customary offers to repurchase and prepayment events upon change of control, asset sale or event of loss and a customary acceleration right after an event of default) on or prior to the Term Loans with the latest Term Loan Maturity Date then in effect, (iii) if such Indebtedness is incurred on or prior to the date that is the one-year anniversary of the Closing Date, the Weighted Average Yield relating to such Indebtedness (which shall be determined by the BorrowersBorrower and the Lenders providing such Indebtedness) shall not exceed the Weighted Average Yield relating to the Term Loans by more than 0.50% unless the Weighted Average Yield relating to the Term Loans is adjusted to be equal to the Weighted Average Yield relating to such Term Loans minus 0.50% and (iv) giving effect to the incurrence of such Indebtedness, the Consolidated First Lien Net Leverage Ratio shall be equal to or less than 4.25:1.00 ((x) determined on a Pro Forma Basis as of the last day of the Test Period most recently ended on or prior to the date of the incurrence of such additional amount of Indebtedness, as if such additional amount of such Indebtedness had been incurred on the first day of such Test Period and (y) calculated without the proceeds of such additional Indebtedness being netted from the Indebtedness for such calculation and assuming the full utilization thereof, whether or not actually utilized); (d) if such Indebtedness is secured by a Lien that is contractually junior to the Lien on Collateral securing the Obligations or is unsecured (or unsecured and contractually subordinated to the Obligations), (i) any Liens securing such Indebtedness shall be pari passu with, or junior to, the Liens securing the Second Lien Obligations, (ii) such Indebtedness shall not have a final scheduled maturity or have scheduled amortization or payments of principal (other than customary offers to repurchase and prepayment events upon change of control, asset sale or event of loss and a customary acceleration right after an event of default) on or prior to the date that is ninety-one days after the latest Term Loan Maturity Date then in effect, and (iiiii) giving effect to the incurrence of such Indebtedness, (x) in the case of junior Lien Indebtedness, the Consolidated Secured Net Leverage Ratio shall be equal to or less than 5.50:1.00 and (y) in the case of unsecured Indebtedness, the Consolidated Total Net Leverage Ratio shall be equal to or less than 5.50:1.00 (in either case, (x) determined on a Pro Forma Basis as of the last day of the Test Period most recently ended prior to the date of the incurrence of such additional amount of such Indebtedness, as if such additional amount of Indebtedness had been incurred on the first day of such Test Period and (y) calculated without the proceeds of such additional Indebtedness being netted from the Indebtedness for such calculation and assuming the full utilization thereof, whether or not actually utilized), (e) if such Indebtedness is secured, (x) the lenders or investors providing such Indebtedness or a representative acting on behalf of such lenders or investors shall have entered into thean applicable Intercreditor Agreement or another intercreditor or subordination agreementarrangement reasonably satisfactory to the Administrative Agent and (y) the obligors (including all borrowers, issuers, guarantors and other credit support providers) under such Indebtedness or a representative acting on behalf of such obligors shall have entered into thean applicable Intercreditor Agreement or another intercreditor or subordination agreementarrangement reasonably satisfactory to the Administrative Agent and (f) if such Indebtedness is unsecured, to the extent that the aggregate principal amount of such Indebtedness plus the aggregate principal amount of all other unsecured Indebtedness of Holdingsthe Borrower and its Restricted Subsidiaries then outstanding and incurred in reliance on Section 6.1(i), (n), (q) (solely in respect of Indebtedness originally incurred in reliance on Section 6.1(i), (n) or (r)) or (r) equals or exceeds $25,000,000, (x) the lenders or investors providing such Indebtedness or a representative acting on behalf

 

3


of such lenders or investors shall have entered into thean applicable Intercreditor Agreement or another intercreditor or subordination agreementarrangement reasonably satisfactory to the Administrative Agent and (y) the obligors (including all borrowers, issuers, guarantors and other credit support providers) under such Indebtedness or a representative acting on behalf of such obligors shall have entered into thean applicable Intercreditor Agreement or another intercreditor or subordination agreementarrangement reasonably satisfactory to the Administrative Agent.

Additional Lender” means, at any time, any bank, other financial institution or investor that, in any case, is not an existing Lender and that agrees to provide any portion of any Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.26; provided that each Additional Lender shall be subject to the approval of the Administrative Agent, the Swing Line Lender and the Issuing Bank (each such approval not to be unreasonably withheld, delayed or conditioned), in each case, to the extent any such approval would be required from the Administrative Agent, the Swing Line Lender and the Issuing Bank under Section 10.6(b) for an assignment of Loans and/or Commitments to such Additional Lender.

Additional Ratio Debt” means any Indebtedness incurred by the BorrowersBorrower (which may be guaranteed by the Guarantors) after the Closing Date, which may be (a) secured by a first priority Lien on the Collateral that is pari passu with the Lien securing the Obligations, (b) secured by a Lien that is contractually junior to the Lien on the Collateral securing the Obligations or (c) unsecured (or unsecured and contractually subordinated to the Obligations).

Adjusted Eurodollar Rate” means with respect to each Interest Period pertaining to a Eurodollar Loan, a rate per annum equal to the Eurodollar Rate.

Administrative Agent” as defined in the preamble.

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Holdings, anythe Borrower or any of the Restricted Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending and noticed to Holdings, the Borrower Representative or any Restricted Subsidiary or, to the knowledge of Holdings, anythe Borrower or any of the Restricted Subsidiaries, threatened in writing against Holdings, the BorrowersBorrower or any of the Restricted Subsidiaries.

Affected Lender” as defined in Section 2.18(b).

Affected Loans” as defined in Section 2.18(b).

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

Affiliated Lender” means, at any time, any Lender that is (i) the Sponsor, (ii) any portfolio company of the Sponsor (excluding Holdings, anythe Borrower, any of their respective Subsidiaries and any Debt Fund Affiliate), or (iii) a Non-Debt Fund Affiliate.

Agent” means each of the Administrative Agent and each Collateral Agent.

 

4


Agent Parties” as defined in Section 10.1(d)(ii).

Aggregate Payments” as defined in Section 7.2.

Agreement” as defined in the preamble hereto.

Alternative Currency” means Euros, Pounds Sterling and any other currency other than Dollars agreed to by the Administrative Agent and the Borrower Representative and (i) in the case of any Revolving Loan denominated in an Alternative Currency, each Revolving Lender and (ii) in the case of any Letter of Credit denominated in an Alternative Currency, the Issuing Bank and each Revolving Lender; provided that each such currency is a lawful currency that is readily available, freely transferable and not restricted, able to be converted into Dollars and available in the London interbank deposit market.

AML Laws” means all Laws of any jurisdiction applicable to any Lender, Holdings, anythe Borrower, any Guarantor or any of Holdings’the Borrower’s other Subsidiaries from time to time primarily or in any material manner concerning or relating to anti-money laundering.

Anti-Corruption Laws” means all Laws of any jurisdiction applicable to Holdings, anythe Borrower, any Guarantor or any of Holdings’the Borrower’s other Subsidiaries from time to time primarily or in any material manner concerning or relating to bribery or corruption, including the FCPA and the UK Bribery Act 2010.

Anti-Terrorism Laws” means any of the Laws primarily relating to terrorism or money laundering, including Executive Order No. 13224, the PATRIOT Act, the Bank Secrecy Act, the Money Laundering Control Act of 1986 (i.e., 18 USC. §§ 1956 and 1957), the Laws administered by OFAC, and all Laws comprising or implementing any such Laws.

Anticipated Cure Deadline” as defined in Section 8.4(a).

Applicable Margin” means:

(a)(i) in the case of Term Loans (other than Incremental Term Loans incurred after the Fourth Amendment Effective Date), (A) prior to the Fourth Amendment Effective Date, (x) 4.75% per annum in the case of Eurodollar Loans and (y) 3.75% per annum in the case of Base Rate Loans and (B) from and after the Fourth Amendment Effective Date and until the delivery of financial statements pursuant to Section 5.1(a) or (b) (and the related Compliance Certificate pursuant to Section 5.1(c)) for the first Fiscal Quarter ending after the Fourth Amendment Effective Date (such period described in this clause (a)(i)(B), the “Initial Applicable Margin Period”), (x) in the case of Eurodollar Loans, 4.25% per annum, and (y) in the case of Base Rate Loans, 3.25% per annum, (ii) in the case of Revolving Loans and Swing Line Loans, (A) prior to the Fourth Amendment Effective Date, (x) 4.50% per annum in the case of Eurodollar Loans and (y) 3.50% per annum in the case of Base Rate Loans and (B) during the Initial Applicable Margin Period, (x) in the case of Eurodollar Loans, 4.25% per annum, and (y) in the case of Base Rate Loans, 3.25% per annum and (iii) in the case of all Loans (other than Incremental Term Loans incurred after the Fourth Amendment Effective Date), after the Initial Applicable Margin Period, the applicable percentage set forth in the table below under the appropriate caption based on the Consolidated Total Net Leverage Ratio set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 5.1(c):

 

Pricing Level

   Consolidated Total
Net Leverage Ratio
   Applicable Margin for
Eurodollar Loans
  Applicable Margin for
Base Rate Loans

I

   >3.50:1.00    4.25%   3.25%

II

   <3.50:1.00 and >3.00:1.00    4.00%   3.00%

III

   <3.00:1.00    3.75%   2.75%

 

5


(b) any increase or decrease in the Applicable Margin pursuant to clause (a)(iii) above resulting from a change in the Consolidated Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date the applicable financial statements are delivered pursuant to Section 5.1(a) or (b) (and the related Compliance Certificate is delivered pursuant to Section 5.5(c)); provided that if notification is provided to the Borrower Representative that the Administrative Agent or the Required Lenders have so elected, “Pricing Level I” shall apply (x) as of the first Business Day after the date on which the financial statements were required to be delivered pursuant to Section 5.1(a) or (b) (and the related Compliance Certificate pursuant to Section 5.5(c)) but were not delivered, and shall continue to so apply to and including the date on which such financial statements (and related Compliance Certificate) are 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 under Section 8.1(a) 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); and

(c) in the case of Incremental Term Loans incurred after the Fourth Amendment Effective Date, a percentage equal to the per annum rate specified in the applicable Joinder Agreement with respect to such Incremental Term Loans.

Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.

Asset Sale” as defined in Section 6.9.

Assignment and Assumption Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit E or otherwise acceptable to the Administrative Agent.

Authorized Officer” means, as applied to any Person (and, in the case of a Person which is an exempted limited partnership, may refer to the general partner of such Person), any individual holding the position of director, manager, chairman of the board (if an officer), chief executive officer, president, vice president (or the equivalent thereof), chief financial officer, treasurer, secretary or assistant secretary; provided, at the Administrative Agent’s election, no individual shall be deemed to be an “Authorized Officer” of any Person unless and until the Administrative Agent shall have received an incumbency certificate as to the office of such individual with respect to such Person.

Available Amount” means as of any date of determination, an amount (which shall not be less than zero), determined on a cumulative basis, equal to $20,000,000, plus, without duplication:

(A) the remainder of (x) the cumulative amount of Consolidated Excess Cash Flow for all Fiscal Years (commencing with the Fiscal Year ending on December 31, 2018) ending prior to such date equal to the percentage thereof that is not required to be applied to the prepayment of the Loans pursuant to Section 2.14(e) minus (y) the aggregate amount by which the Consolidated Excess Cash Flow payment for any such Fiscal Year pursuant to Section 2.14(e) has been reduced by voluntary prepayments of Loans and/or voluntary reductions of the Revolving Credit Commitments as provided in such Section 2.14(e); plus

 

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(B) the sum of:

(i) the cumulative amount of all contributions to the common capital of Holdings and/or LLC Subsidiary or the net proceeds of the issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings and/or LLC Subsidiary, in each case, that have been contributed to athe Borrower or any Released Borrower and were received in cash or Cash Equivalents after the Closing Date and prior to the Sixth Amendment Effective Date, and received on or prior to the date of such determination (other than (x) any amount thereof designated as a Cure Amount prior to the Sixth Amendment Effective Date, (y) any amount thereof received from any of the Borrower, the Released Borrowers or any Restricted Subsidiary prior to the Sixth Amendment Effective Date or (z) any amount thereof used pursuant to Section 6.4(j) or 6.4(k) of this Agreement as in effect prior to the Sixth Amendment Effective Date), plus

(ii) without duplication of any amount described in clause (B)(i) above, the cumulative amount of all contributions to the common capital of the Borrower or the net proceeds of the issuance of Equity Interests (other than Disqualified Equity Interests) of the Borrower received in cash or Cash Equivalents on or after the Sixth Amendment Effective Date and on or prior to the date of such determination (other than (x) any amount thereof designated as a Cure Amount on and after the Sixth Amendment Effective Date, (y) any amount thereof received from the Borrower or any Restricted Subsidiary on and after the Sixth Amendment Effective Date or (z) any amount thereof used pursuant to Section 6.4(j) or 6.4(k) of this Agreement as in effect on and after the Sixth Amendment Effective Date), plus

(iiiii) the cumulative amount of all Returns actually received in cash by athe Borrower or, the Released Borrowers or a Restricted Subsidiary after the Closing Date and prior to the Sixth Amendment Effective Date, and received on or prior to the date of such determination in respect of all Investments made pursuant to SectionSections 6.6(e)(i)(y), 6.6(q) (with respect to clause (ii)(b)(y) of the definition of “Permitted Acquisition”), or 6.6(x) of this Agreement as in effect prior to the Sixth Amendment Effective Date (in each case up to the amount of the original Investment made pursuant to such Section), other than any proceeds from any sale of any Investment to athe Borrower, the Released Borrowers or any Restricted Subsidiary received prior to the Sixth Amendment Effective Date; plus

(iv) without duplication of any amount described in clause (B)(iii) above, the cumulative amount of all Returns actually received in cash by the Borrower or a Restricted Subsidiary on or after the Sixth Amendment Effective Date and received on or prior to the date of such determination in respect of all Investments made pursuant to Sections 6.6(e)(i)(y), 6.6(q) (with respect to clause (ii)(b)(y) of the definition of “Permitted Acquisition”), or 6.6(x) of this Agreement as in effect on and after the Sixth Amendment Effective Date (in each case up to the amount of the original Investment made pursuant to such Section), other than any proceeds from any sale of any Investment to the Borrower or any Restricted Subsidiary received on or after the Sixth Amendment Effective Date; plus

 

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(C) the sum of:

(Ci) the amount of any Investment made by athe Borrower, the Released Borrowers and/or any Restricted Subsidiary in reliance on this definition (up to the amount of the original Investment) in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated into athe Borrower, the Released Borrowers and/or any Restricted Subsidiary or the fair market value of the assets of any Unrestricted Subsidiary (as reasonably determined by Holdingsthe Borrower) that have been transferred to athe Borrower, the Released Borrowers and/or any Restricted Subsidiary, in each case, after the Closing Date and prior to the Sixth Amendment Effective Date; plus

(ii) without duplication of any amount described in clause (C)(i) above, the amount of any Investment made by the Borrower and/or any Restricted Subsidiary in reliance on this definition (up to the amount of the original Investment) in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated into the Borrower and/or any Restricted Subsidiary or the fair market value of the assets of any Unrestricted Subsidiary (as reasonably determined by the Borrower) that have been transferred to the Borrower and/or any Restricted Subsidiary, in each case, on or after the Sixth Amendment Effective Date; plus

(D) the cumulative amount of all Retained Declined Proceeds; minus

(E) the sum of:

(i) the cumulative amount of all repayments, redemptions, purchases, defeasances and other payments in respect of any Junior Financing made after the Closing Date and on or prior to the date of such determination in reliance on Section 6.3(a)(v) of this Agreement as in effect prior to or on and after the Sixth Amendment Effective Date; plus

(ii) the cumulative amount of all Restricted Payments made after the Closing Date and on or prior to the date of such determination in reliance on Section 6.4(i) of this Agreement as in effect prior to or on and after the Sixth Amendment Effective Date; plus

(iii) the cumulative amount of all Investments made after the Closing Date and on or prior to the date of such determination in reliance on Section 6.6(e)(i)(y), 6.6(q) (with respect to clause (ii)(b)(y) of the definition of “Permitted Acquisition”) or 6.6(x) of this Agreement as in effect prior to or on and after the Sixth Amendment Effective Date.

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

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

Bank of America” means Bank of America, N.A., a national bank association, acting in its individual capacity, and its successors and assigns.

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

 

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Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the sum of (a) the Federal Funds Effective Rate in effect on such day, plus (b) 12 of 1.00%, (iii) the sum of (a) the Adjusted Eurodollar Rate for an Interest Period of one month at approximately 11:00 a.m. London time on such day (or if such day is not a Business Day, the immediately preceding Business Day), plus (b) 1.00%, and (iv) 2.00% per annum. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate, as the case may be, shall be effective on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate, as applicable.

Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

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

Beneficiary” means each Agent, the Issuing Bank, each Lender, each Eligible Counterparty and each Cash Management Bank.

BNPP LC Cap” as defined in the definition of “Letter of Credit Sub-Limit”.

Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person, (ii) in the case of any limited liability company, the board of directors or managers or managing member of such Person, (iii) in the case of any partnership, the general partners of such partnership (or the board of directors or managers or managing member of the general partner of such Person, if any) or advisory board of such partnership and/or (iv) in any case, the functional equivalent of the foregoing.

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

Borrower Joinder” means a Borrower Joinder substantially in the form of Exhibit N or otherwise in form and substance reasonably acceptable to the Administrative Agent.

Borrower Representative” means U.S. Borrower in its capacity as Borrower Representative pursuant to the provisions of Section 2.27(b).

BorrowersBorrower” as defined in the preamble hereto.

Business Day” means (i) with respect to all matters except those addressed in clause (ii) or (iii) below, any day excluding Saturday, Sunday and any day which is a legal holiday under the Laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by Law or other governmental action to close, (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Loans, the term “Business Day” means any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market and (iii) with respect to all notices, determinations, fundings and payments in connection with any Loans or Letters of Credit denominated in an Alternative Currency, the term “Business Day” means any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in deposits in such Alternative Currency in the London interbank market and (other than any date that relates to any interest rate setting in respect of such Alternative Currency) any such day on which banks are open for foreign exchange business in the principal financial center of the country of such Alternative Currency.

 

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Business Disposition” means the disposition of the outstanding Equity Interests of a Subsidiary or the assets comprising all or a substantial part of a division or business unit or a substantial part of all of the business of Holdingsthe Borrower and its Restricted Subsidiaries, taken as a whole.

Capital Expenditures” means, for any period, the additions to property, plant and equipment and other capital expenditures of Holdings, the BorrowersBorrower and the Restricted Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of the HoldingsBorrower for such period prepared in accordance with GAAP.

Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or is required to be accounted for as a capital lease on the balance sheet of that Person; provided, that no lease that would not be considered a capital lease under GAAP as in effect on the Closing Date shall be considered a Capital Lease.

Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Bank or the Swing Line Lender (as applicable) and the Lenders, as collateral for the Letter of Credit Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances under the sole dominion or control of the Collateral Agent or, if the Issuing Bank or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (i) the Administrative Agent and (ii) the Issuing Bank or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Equivalents” means, as at any date of determination, any of the following: (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within twenty four months after such date; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A 1 from S&P or at least P 1 from Moody’s; (iii) commercial paper maturing no more than twenty four months from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A 1 from S&P or at least P 1 from Moody’s and Indebtedness or preferred stock issued by Persons with a rating of A 1 from S&P or at least P 1 from Moody’s, with maturities of 24 months or less from the date of acquisition; (iv) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the Laws of the United States of America or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000; and (v) shares of any money market mutual fund or other investment fund that (a) has at least 90% of its assets invested in the types of investments referred to in clauses (i) through (iv) above and (b) has net assets of not less than $5,000,000,000. Cash Equivalents shall also include (i) Investments of the type and maturity described in clauses (i) through (v) above of any Non-U.S. Person, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from S&P or Moody’s or comparable foreign rating agencies and (ii) other short-term investments utilized by any Non-U.S. Person in accordance with normal investment practices for cash management in investments analogous and comparable in credit quality to the foregoing investments.

 

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Cash Management Agreement” means any agreement entered into between a Credit Party and a Cash Management Bank.

Cash Management Bank” means the (i) Administrative Agent and any Affiliate of the Administrative Agent, (ii) Bank of America (or any Affiliate thereof), solely if Bank of America becomes a Revolving Lender (for the avoidance of doubt, including with respect to any Cash Management Product already in place at the time Bank of America becomes a Revolving Lender or provided at the time Bank of America becomes a Revolving Lender) and (iii) any Lender and any Affiliate of any Lender, in each case, at the time it provides any Cash Management Product; provided, the term “Cash Management Bank” shall include any Person that is the Administrative Agent, an Affiliate of the Administrative Agent, a Lender or an Affiliate of a Lender as of the date that such Person provides any Cash Management Product, but subsequently ceases to be the Administrative Agent, an Affiliate of the Administrative Agent, a Lender or an Affiliate of a Lender, as the case may be.

Cash Management Obligations” means the obligations of a Grantor pursuant to any Cash Management Agreement.

Cash Management Products” means each and any of the following services provided to a Grantor by any Cash Management Bank: (i) credit cards for commercial customers (including, without limitation, commercial credit cards and purchasing cards), (ii) stored value cards and (iii) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).

Cayman Collateral Documents” means each document or instrument governed by the laws of the Cayman Islands that creates or evidences or which is expressed to create or evidence any Lien on Collateral granted or required to be granted pursuant to any Credit Document.

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

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

Change of Control” means any of the following:

(i) at any time prior to the consummation of a Qualified IPO, the Sponsor and its Controlled Investment Affiliates shall cease to beneficially own and control, directly or indirectly, on a fully diluted basis (a) more than 50% of the voting Equity Interests of Holdings or LLC Subsidiary or (b) a sufficient number of the issued and outstanding Equity Interests of Holdings or LLC Subsidiary to have and exercise voting power for the election of directors holding a majority of the voting power of the Board of Directors of Holdings and LLC Subsidiary; or

 

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(iii) at any time after the consummation of athe Qualified Borrower IPO, any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act, or any successor provision) other than the Sponsor, Holdings, Honeywell International Inc. Master Retirement Trust, OPB EagleTree IVWP III Holdings Trust, AlpInvest Partners or any of their respective Controlled Investment Affiliates (a) shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the voting Equity Interests of Holdings or LLC Subsidiarythe Borrower or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the Board of Directors of Holdings or LLC Subsidiarythe Borrower; or

(iii) Other than as results from a transaction permitted by Section 6.8, Holdings and LLC Subsidiary, collectively, shall cease to directly own and control 100% on a fully diluted basis of the Equity Interests of U.S. Borrower and Lux Holdco (other than directors qualifying shares and the like); or

(iv) Other than as results from a transaction permitted by Section 6.8, Lux Holdco shall cease to directly own and control 100% on a fully diluted basis of the Equity Interests of Lux Borrower (other than directors qualifying shares and the like); or

(vii) any “change of control” or similar event as provided in the Second Lien Credit Agreement, any other Junior Financing Document, or in any document pertaining to any item (or series of related items) of Indebtedness of any Credit Party with an aggregate outstanding principal amount of $10,000,000 or more.

CIP Regulations” as defined in Section 9.7.

Class” means (i) with respect to the Lenders, each of the following classes of the Lenders: (a) the Lenders having Term Loan Exposure, (b) the Lenders having Revolving Credit Exposure (including the Swing Line Lender), (c) the Lenders having Incremental Term Loan Exposure of each Series, (d) the Lenders having Extended Term Loan Exposure, (e) Lenders having Other Revolving Loan Exposure and (f) Lenders having Other Term Loan Exposure, (ii) with respect to Loans, each of the following classes of Loans: (a) Term Loans, (b) Revolving Loans (including Swing Line Loans), (c) each Series of Incremental Term Loans, (d) Extended Term Loans, (e) Other Revolving Loans and (f) Other Term Loans and (iii) with respect to Commitments, each of the following classes of Commitments: (a) Revolving Credit Commitments, (b) Term Loan Commitments, (c) Incremental Revolving Credit Commitments, (d) Incremental Term Loan Commitments, (e) Other Revolving Commitments and (f) Other Term Loan Commitments.

Closing Date” means the date on which the initial Term Loans are made.

Closing Date Acquisition” as defined in the recitals hereto.

Closing Date Acquisition Agreement” as defined in the recitals hereto.

Closing Date Acquisition Agreement Representations” means the representations and warranties made by Seller 1, Corsair Components (Cayman) II Ltd., and/or the Targets, with respect to the Targets and the Acquired Business (including the ownership of the equity interests of the Targets by Seller 1 and Corsair Components (Cayman) II Ltd.) in the Closing Date Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that Holdings or its Affiliates has the right to terminate its or their obligations under the Closing Date Acquisition Agreement or to decline to consummate the Closing Date Acquisition as a result of a breach of such representations or warranties in the Closing Date Acquisition Agreement.

 

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Closing Date Acquisition Documents” means the Closing Date Acquisition Agreement and all material agreements, documents and instruments, including any escrow agreement, executed and/or delivered pursuant thereto or in connection therewith (other than the Credit Documents and the Management Agreement).

Closing Date Acquisition Transactions” means the Closing Date Acquisition and the other transactions consummated (or to be consummated) pursuant to the Closing Date Acquisition Documents.

Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit F or otherwise acceptable to the Administrative Agent.

Closing Date Foreign Collateral Documents” means each document and/or instrument listed on Schedule F-1 to this Agreement on the Closing Date.

Code” means the Internal Revenue Code of 1986, as amended from time to time.

Collateral” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations, but excluding any Excluded Assets; provided that, notwithstanding the foregoing or anything to the contrary contained herein, any assets constituting “collateral” for the benefit of the lenders under the Second Lien Credit Documents shall also constitute Collateral for purposes of the Credit Documents.

Collateral Agent” shall mean (i) with respect to any Foreign Collateral Document, Cortland Capital Market Services LLC (together with its permitted successors and assigns in such capacity) and (ii) with respect to this Agreement or any other Credit Document (other than any Foreign Collateral Document), as defined in the preamble.

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

Commitment” means any Revolving Credit Commitment, Incremental Revolving Credit Commitment, Term Loan Commitment, Incremental Term Loan Commitment, Other Revolving Commitment or Other Term Loan Commitment.

Commitment Letter” means the Commitment Letter, dated July 22, 2017, by and among Holdings, Macquarie Capital Funding LLC, Macquarie Capital (USA) Inc., BNP Paribas and BNP Paribas Securities Corp.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. §1 et. seq.), and any rule, regulation or order promulgated thereunder.

Communications” as defined in Section 10.1(d)(ii).

 

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Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C-1 or otherwise in form acceptable to the Administrative Agent.

Consolidated Adjusted EBITDA” means, for any period, an amount determined for Holdingsthe Borrower and its Restricted Subsidiaries (or, when reference is made to another Person, for such other Person and its Subsidiaries or, if such Person is athe Borrower, its Restricted Subsidiaries) on a consolidated basis equal to (A) plus (B) minus (C), in which:

(A) equals Consolidated Net Income for such period; and

(B) equals, to the extent deducted in determining Consolidated Net Income for such period, the sum (without duplication) of:

(i) total interest expense (including amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, original issue discount resulting from the issuance of Indebtedness at less than par and net losses and other obligations under any Swap Contracts or other derivative instruments entered into for the purpose of hedging risk, to the extent the same were deducted (and not added back) in calculating Consolidated Net Income); plus

(ii) (x) provisions for taxes based on income or profits or capital, including, without limitation, state, franchise, payroll and similar taxes and foreign withholding taxes of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income and, without duplication, Restricted Payments permitted pursuant to Section 6.4(g)(i) and (y) to the extent that such amounts would otherwise reduce Consolidated Net Income for such period, cash tax payments in respect of tax liabilities for periods ended prior to the Closing Date (and all charges, losses and expenses related thereto); plus

(iii) total depreciation expense; plus

(iv) total amortization expense; plus

(v) other non-cash charges, write-downs, expenses, losses or other items reducing Consolidated Net Income for such period including (a) non-cash charges related to any underfunded Pension Plans, (b) any impairment charges or the impact of purchase accounting (excluding any amortization of a prepaid cash charge or a write-down of inventory that was, in either case, paid in a prior period), (c) non-cash items for any management equity plan, supplemental executive retirement plan or stock option plan or other type of compensatory plan for the benefit of officers, directors or employees, (d) non cash restructuring charges or non-cash reserves in connection with any Permitted Acquisition or other Investment permitted pursuant to this Agreement, in each case, consummated after the Closing Date, (e) all non-cash losses (minus any non-cash gains) from Asset Sales (but for clarity excluding write offs or write downs of inventory), (f) any non-cash purchase or recapitalization accounting adjustments, (g) non-cash losses (minus any non-cash gains) with respect to Swap Contracts, (h) non-cash charges attributable to any post-employment benefits offered to former employees, (i) non-cash asset impairments (but for clarity excluding impairments of inventory) and (j) the non-cash effects of purchase accounting or similar adjustments required or permitted by GAAP in connection with any Permitted Acquisitions or Investments permitted pursuant to this Agreement; provided, that the adjustments described in this clause (v) shall exclude any non-cash loss or expense

 

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(x) that is an accrual of a reserve for a cash expenditure or payment to be made, or anticipated to be made, in a future period, (y) relating to a write-down, write off or reserve with respect to accounts, or (z) relating to a write-down, write off or reserve with respect to inventory except to the extent permitted pursuant to clause (xxiii) below; plus

(vi) Transaction Costs; plus

(vii) fees and reimbursable expenses and indemnities accrued or paid to Sponsor or any Affiliate thereof under the Management Agreement in accordance with Section 6.11(e); plus

(viii) accruals, fees, payments and expenses (including legal, tax, structuring and other costs and expenses) incurred by Holdingsthe Borrower and its Restricted Subsidiaries in connection with any Permitted Acquisition or other Investment, the Qualified Borrower IPO or the Qualified Borrower IPO/Reorganization Transactions, any Restricted Payment, Asset Sale or debt or equity issuance or recapitalization or any refinancing transactions or any amendment or other modification of any debt agreement that are payable to unaffiliated third parties, in each case, incurred for such period to the extent attributable to any relevant transaction permitted under this Agreement (whether or not successful) that was consummated or attempted to be consummated or in process in such period; plus

(ix) [reserved];

(x) restructuring charges or reserves, integration costs or other business optimization expenses (which, for the avoidance of doubt, shall include retention, severance, systems establishment costs, one-time corporate establishment costs, one-time third-party consulting costs, recruiting costs, contract termination costs (including future lease commitments) and costs to close and consolidate facilities and relocate employees), and costs associated with establishing new facilities, including any costs incurred in connection with Permitted Acquisitions after the Closing Date, costs related to the closure and/or consolidation of facilities, costs incurred in connection with litigation (including settlements) and costs incurred to achieve the savings added back under clause (xi) below and other unusual, one time or non-recurring charges, losses and expenses; plus

(xi) the amount of “run-rate” cost savings, operating expense reductions and synergies (collectively, “Cost Savings”) projected by Holdingsthe Borrower in good faith to result from actions (including Permitted Acquisitions) either taken or initiated prior to or during such period (including prior to the Closing Date) or expected to be taken within eighteen months (which Cost Savings shall be calculated on a Pro Forma Basis as though such Cost Savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (a) such Cost Savings are (1) reasonably identifiable, factually supportable, reasonably attributable to the actions specified and reasonably anticipated to result from such actions, and (2) set forth in a certificate signed by an Authorized Officer of Holdingsthe Borrower and delivered to the Administrative Agent stating (A) the amount of such adjustment or adjustments and (B) that such adjustment or adjustments are based on the reasonable good faith beliefs of the Authorized Officer of Holdingsthe Borrower executing such certificate at the time of such execution, (b) the benefits resulting therefrom have been realized or are anticipated by Holdingsthe Borrower to be realized within eighteen months, (c) no Cost Savings shall be added pursuant to this clause (xi) to the extent duplicative of any expenses or charges

 

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relating to such Cost Savings that are included in clause (x) above with respect to such period, (d) if Holdings or the BorrowersBorrower shall have obtained any consultant’s or advisor’s report or analysis with respect to such Cost Savings, such report shall have been or shall be shared with the Administrative Agent, and (e) in no event shall the Cost Savings added back under this clause (xi) be in an aggregate amount that exceeds 25% of Consolidated Adjusted EBITDA (calculated before giving effect to any adjustment pursuant to this clause (xi)) in the aggregate in any four Fiscal Quarter period; plus

(xii) any costs or expense 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 cost or expenses are funded with cash proceeds contributed to the capital of Holdings or LLC Subsidiarythe Borrower or net cash proceeds of an issuance of Equity Interests of Holdings or LLC Subsidiarythe Borrower (other than Disqualified Equity Interests or any Cure Amount) and are excluded from the calculations set forth in the definition of “Available Amount” and are not otherwise used pursuant to Section 6.4(j) or 6.4(k); plus

(xiii) realized foreign exchange losses resulting from the impact of foreign currency changes and related tax effects determined in accordance with GAAP on the valuation of assets or liabilities on the balance sheet of Holdingsthe Borrower and its Restricted Subsidiaries, and any exchange, translation or performance losses relating to any foreign currency hedging transactions for such period; plus

(xiv) net losses associated with cancelled or discontinued products or business lines or any discontinued operations, including costs associated with termination of, and reductions in, work force; plus

(xv) fees, costs and expenses paid to or on behalf of any members of the Board of Directors of Holdings or Parentthe Borrower or to any observer of the Board of Directors of Holdings or Parent, in each case, other than any Affiliates of the Sponsorthe Borrower (or Restricted Payments made for the payment thereof); plus

(xvi) all costs, expenses and charges associated with sales force or employee optimization plans, product repositioning, product launch costs, research and development costs for new products, marketing expenses for new products, one time contract negotiation costs and other startup expenses, in each case in an amount not to exceed $4,000,000 for any four Fiscal Quarter period; provided, such amounts may only be added-back to Consolidated Adjusted EBITDA in respect of the first twelve (12) Fiscal Quarters following the Closing Date; plus

(xvii) any net loss included in Consolidated Net Income attributable to non-controlling interests pursuant to the application of Accounting Standards Codification Topic 810-10-45; plus

(xviii) net realized losses from Swap Contracts or embedded derivatives that require similar accounting treatment and the application of Accounting Standard Codification Topic 815 and related pronouncements; plus

 

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(xix) compensation expenses resulting from (a) the repurchase of equity interests of Holdings or LLC Subsidiarythe Borrower from employees, directors or consultants of Holdingsthe Borrower or any of its Subsidiaries, in each case, to the extent permitted by this Agreement, (b) any non-cash expense related 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 and (c) payments to employees, directors or officers of Holdingsthe Borrower and its Subsidiaries paid in connection with Restricted Payments that are otherwise permitted under this Agreement; plus

(xx) proceeds of business interruption insurance to the extent such proceeds are received by Holdingsthe Borrower or any Subsidiary during such period or reasonably expected to be reimbursed no later than one year after the end of such period pursuant to a written contract or insurance policy with an unaffiliated third party, which contract or insurance obligation has not been disclaimed; plus

(xxi) expenses actually reimbursed or reasonably expected to be reimbursed no later than one year after the end of such period pursuant to a written contract or insurance policy with an unaffiliated third party, which contract or insurance obligation has not been disclaimed; plus

(xxii) losses, charges and expenses attributable to Asset Sales or the sale or other disposition of any Equity Interests of any Person other than in the ordinary course of business but permitted pursuant to this Agreement, plus

(xxiii) write downs, write offs or reserves with respect to inventory of any Subsidiary of Holdingsthe Borrower in an amount not to exceed 10% of Consolidated Adjusted EBITDA (calculated before giving effect to any adjustment pursuant to this clause (xxiii)) in the aggregate in any four Fiscal Quarter period; plus

(xxiv) the amount of any earn-out obligations which become due and payable and are paid or accrue during such period; and

(C) equals, to the extent included in determining Consolidated Net Income for such period, the sum (without duplication) of:

(i) any cash payments or cash charges during such period on account of any non-cash charges previously added-back to determine Consolidated Adjusted EBITDA pursuant to clause (B)(v) above; plus

(ii) any net realized income or gains from any obligations under any Swap Contracts or embedded derivatives that require similar accounting treatment and the application of Accounting Standard Codification Topic 815 and related pronouncements; plus

(iii) any net income included in Consolidated Net Income attributable to non-controlling interests pursuant to the application of Accounting Standards Codification Topic 810-10-45; plus

(iv) realized foreign exchange gains resulting from the impact of foreign currency changes and related tax effects determined in accordance with GAAP on the valuation of assets or liabilities on the balance sheet of Holdingsthe Borrower and its Restricted Subsidiaries, and any exchange, translation or performance gains relating to any foreign currency hedging transactions for such period; plus

 

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(v) any non-cash income or non-cash gains (including any cancellation of indebtedness income) to the extent not already excluded from the calculation of Consolidated Net Income for such period or deducted from Consolidated Adjusted EBITDA for such period pursuant to clause (B)(v) above; plus

(vi) federal, state, local and foreign income tax credits.

Notwithstanding the foregoing, but subject to adjustment pursuant to the immediately following paragraph with respect to transactions following the Closing Date, the parties hereto agree that (i) Consolidated Adjusted EBITDA for the Fiscal Quarter ending (a) on September 30, 2016 shall be deemed to be $15,766,000, (b) on December 31, 2016 shall be deemed to be $18,764,000, (c) on March 31, 2017 shall be deemed to be $13,182,000 and (d) on June 30, 2017 shall be deemed to be $10,701,000 and (ii) Consolidated Adjusted EBITDA for the Fiscal Quarter ending September 30, 2017 shall be calculated in good faith by Holdings in a manner consistent with the methodology used to calculate the deemed Consolidated Adjusted EBITDA amounts provided in clause (i) of this paragraph.

For purposes of calculating Consolidated Adjusted EBITDA for any period, (A) if at any time during such period Holdingsthe Borrower or any of its Restricted Subsidiaries shall have made any Business Disposition, Consolidated Adjusted EBITDA for such period shall be reduced by an amount equal to the Consolidated Adjusted EBITDA (if positive) attributable to the Equity Interests or the assets, as applicable, that is the subject of such Business Disposition for such period or increased by an amount equal to the Consolidated Adjusted EBITDA (if negative) attributable thereto for such period as if such Business Disposition occurred on the first day of such period, giving effect to such pro forma adjustments determined by Holdingsthe Borrower in good faith as are consistent with Securities and Exchange Commission Regulation S-X or otherwise reasonably acceptable to the Administrative Agent, and (B) without duplication of the immediately preceding paragraph in respect of the periods addressed thereby, if during such period Holdingsthe Borrower or any of its Restricted Subsidiaries shall have made a Permitted Acquisition, the Consolidated Adjusted EBITDA for such period shall be increased by an amount equal to the Consolidated Adjusted EBITDA of the Person(s) or business(es) so acquired for such period and otherwise calculated after giving pro forma effect thereto as if such Permitted Acquisition occurred on the first day of such period, giving effect to such pro forma adjustments determined by Holdingsthe Borrower in good faith as are consistent with Securities and Exchange Commission Regulation S-X or otherwise reasonably acceptable to the Administrative Agent.

Consolidated Excess Cash Flow” means, for any period, an amount (if positive) equal to (A) minus (B), in which:

(A) equals the sum (without duplication) of:

(i) Consolidated Net Income for such period, plus

(ii) the aggregate amount of non-cash charges and losses reducing Consolidated Net Income for such period, including for depreciation and amortization (excluding any such non-cash charge and losses to the extent that it represents an accrual or reserve for potential cash charge in any future period or amortization of a prepaid cash charge that was paid in a prior period), plus

(iii) the Consolidated Working Capital Adjustment for such period; plus

(iv) any net extraordinary unusual, one-time or non-recurring cash gains (or minus any net extraordinary unusual, one-time or non-recurring cash losses, charges or expenses) that have been excluded from the calculation of Consolidated Net Income for such period pursuant to the definition thereof; and

 

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(B) equals the sum (without duplication) of:

(i) the aggregate amount of any Loans prepaid under this Agreement pursuant to Section 2.14, any mandatory prepayments of any Junior Financing and any scheduled amortization repayments of Indebtedness for borrowed money (including on the Second Lien Term Loans) paid from Internally Generated Cash during such period; plus

(ii) the aggregate amount of scheduled repayments of obligations under Capital Leases (excluding any interest expense portion thereof) paid from Internally Generated Cash during such period; plus

(iii) the aggregate amount of Capital Expenditures paid from Internally Generated Cash during such period; plus

(iv) the aggregate amount of non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for potential cash gain in any prior period); plus

(v) the aggregate amount of consideration and related capitalized fees and expenses for Investments, Permitted Acquisitions and acquisitions of intellectual property paid from Internally Generated Cash during such period; plus

(vi) without duplication of amounts paid pursuant to clause (v) above, amounts paid from Internally Generated Cash during such period in respect of contingent payments, earn-outs and any other deferred purchase price payments in connection with the Related Transactions, any Permitted Acquisition or any other Investment or Asset Sale (to the extent that such amounts did not reduce Consolidated Net Income for such period); plus

(vii) without duplication of amounts deducted from Consolidated Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by Holdingsthe Borrower or any of its Restricted Subsidiaries pursuant to letters of intent and/or definitive agreements (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, Capital Expenditures or acquisitions of intellectual property to be consummated or made during the period of four consecutive Fiscal Quarters of Holdingsthe Borrower following the end of such period to the extent intended to be financed with Internally Generated Cash of Holdingsthe Borrower and its Restricted Subsidiaries; provided that to the extent the aggregate amount utilized from Internally Generated Cash of Holdingsthe Borrower and its Restricted Subsidiaries to finance such Permitted Acquisitions, 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 Consolidated Excess Cash Flow at the end of such period of four consecutive Fiscal Quarters; plus

(viii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Holdingsthe Borrower and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness; plus

 

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(ix) an amount equal to any expenses or charges excluded from Consolidated Net Income pursuant to clause (C)(y) of the final paragraph of the definition thereof and not yet reimbursed; plus

(x) to the extent permitted hereunder, the aggregate amount of all voluntary principal prepayments of Indebtedness (other than the Loans) made during such period to the extent made with Internally Generated Cash of Holdingsthe Borrower and its Restricted Subsidiaries (excluding any payments in respect of a revolving credit facility unless there is an equivalent permanent reduction in commitments thereunder).

Consolidated First Lien Debt” means, as at any date of determination, the amount of Consolidated Total Debt that is secured by a Lien on any asset of Holdingsthe Borrower or any Restricted Subsidiary whether or not constituting Collateral (other than a Lien that is junior to the Lien of the Collateral Agent pursuant to thean applicable Intercreditor Agreement or any other intercreditor or other subordination agreementarrangement that is reasonably satisfactory to the Administrative Agent).

Consolidated First Lien Net Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (x)(i) Consolidated First Lien Debt as of such date, minus (ii) the aggregate amount of Qualified Cash as of such date, to (y) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.

Consolidated Net Income” means, for any period, an amount equal to (A) minus (B), in which:

(A) equals the net income (or loss) of Holdingsthe Borrower and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; and

(B) equals the sum (without duplication) of:

(i) the income (or loss) of any Person in which any other Person (other than Holdingsthe Borrower or any of its wholly owned Restricted Subsidiaries) has a direct joint equity interest, except to the extent of the amount of dividends or other distributions actually paid in cash to Holdingsthe Borrower or any of its wholly owned Restricted Subsidiaries by such Person during such period; plus

(ii) the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary of Holdingsthe Borrower or is merged into or consolidated with Holdingsthe Borrower or any of its Restricted Subsidiaries or that Person’s assets are acquired by Holdingsthe Borrower or any of its Restricted Subsidiaries; plus

(iii) the income of any Restricted Subsidiary of Holdingsthe Borrower (other than LLC Subsidiary, a Borrower or a Guarantor Subsidiary) to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary; plus

(iv) any after tax gains (or minus any losses) attributable to or in connection with (a) any casualty or condemnation event, (b) any Asset Sale or any sale, lease, license, exchange, transfer or other disposition of assets permitted pursuant to Section 6.9 and not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by Holdingsthe Borrower) or (c) returned surplus assets of any Pension Plan for such period; plus

 

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(v) any income (loss) for such period attributable to the early extinguishment or cancellation of Indebtedness or any obligations under any Swap Contracts or other derivative instruments; plus

(vi) currency translation gains and losses related to currency remeasurements of Indebtedness (including the net loss or gain (x) resulting from Swap Contracts for currency exchange risk and (y) resulting from intercompany indebtedness); plus

(vii) all other foreign currency translation gains or losses to the extent such gains or losses are non-cash items; plus

(viii) to the extent not included in clauses (i) through (vii) above, any net extraordinary, unusual, one-time or non-recurring gains (or minus any net extraordinary, unusual, one-time or non-recurring losses, charges or expenses) for such period.

In addition, Consolidated Net Income shall exclude (A) the cumulative effect of any change in accounting principles; (B) any non-cash compensation charge or expense arising from any grant of shares, stock, stock options or other equity based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions; and (C) (x) any expenses and charges that are reimbursed by indemnification or other reimbursement provisions in connection with the Closing Date Acquisition or any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder and (y) to the extent covered by insurance and actually reimbursed, or, so long as Holdingsthe 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 (I) not denied by the applicable carrier in writing within 180 days and (II) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses with respect to liability or casualty events or business interruption.

Consolidated Secured Debt” means, as at any date of determination, the amount of Consolidated Total Debt that is secured by a Lien on any asset of Holdingsthe Borrower or any Restricted Subsidiary whether or not constituting Collateral.

“Consolidated Secured Net Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (x)(i) Consolidated Secured Debt as of such date minus (ii) the aggregate amount of Qualified Cash as of such date, to (y) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.

Consolidated Total Debt” means, as at any date of determination, the aggregate amount of all Funded Indebtedness.

Consolidated Total Net Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (x)(i) Consolidated Total Debt as of such day, minus (ii) the aggregate amount of Qualified Cash as of such date, to (y) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.

Consolidated Working Capital” means, as at any date of determination, the excess of (i) the total assets of Holdingsthe Borrower and its Restricted Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Cash Equivalents, over (ii) the total liabilities of Holdingsthe Borrower and its Restricted Subsidiaries on a consolidated basis that may

 

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properly be classified as current liabilities in conformity with GAAP, excluding without duplication, (a) the current portion of any Indebtedness of Holdingsthe Borrower and its Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans, (b) all Indebtedness consisting of Revolving Loans, Swing Line Loans and Letter of Credit Obligations to the extent otherwise included therein, (c) the current portion of interest, (d) the current portion of current and deferred income taxes, (e) the current portion of any liability in respect of any Capital Lease, (f) the current portion of deferred revenue, (g) the current portion of deferred acquisition costs and (h) current accrued costs associated with any restructuring or business optimization (including accrued severance and accrued facility closure costs).

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

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

Contributing Guarantors” as defined in Section 7.2.

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

Controlled Investment Affiliate” means, as applied to any Person, any other Person which directly or indirectly is in Control of, is Controlled by, or is under common Control with, such Person and is organized by such Person (or any Person Controlling, Controlled by or under common Control with such Person) primarily for making equity or debt investments in Holdingsthe Borrower or other portfolio companies of such Person.

Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.

Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2 or otherwise in form acceptable to the Administrative Agent.

Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit G or otherwise in form acceptable to the Administrative Agent.

 

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Credit Agreement Refinancing Indebtedness” means (a) Permitted First Priority Refinancing Debt, (b) Permitted Second Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment (including Other Term Loans and Other Revolving Loans), in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans or existing Revolving Loans (or unused Revolving Credit Commitments), or any then existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) such Indebtedness does not mature prior to the maturity date of, or have a shorter Weighted Average Life to Maturity than the then applicable Weighted Average Life to Maturity of, the Refinanced Debt (other than to the extent of nominal amortization for periods where amortization has been eliminated or reduced as a result of prepayments of such Refinanced Debt), (ii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued and unpaid interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing, extension, renewal or replacement thereof, (iii) such Refinanced Debt (including any commitments in respect thereof) shall be repaid, defeased, terminated or satisfied and discharged on a dollar-for-dollar basis, and all accrued and unpaid interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained, (iv) the aggregate unused revolving commitments under such Credit Agreement Refinancing Indebtedness shall not exceed the unused Revolving Credit Commitments being replaced, extended or renewed, (v) any Credit Agreement Refinancing Indebtedness that does not constitute a Class of Loans hereunder shall be established as a separate facility that is not incurred under this Agreement, (vi)(x) if the Refinanced Debt is secured on a pari passu basis with the Obligations, then the Credit Agreement Refinancing Indebtedness in respect thereof shall be secured on a pari passu basis or on a junior basis to the Obligations or shall be unsecured, (y) if the Refinanced Debt is secured on a junior basis to the Obligations, then the Credit Agreement Refinancing Indebtedness in respect thereof shall be secured on a junior basis to the Obligations or shall be unsecured and (z) if the Refinanced Debt is unsecured, then the Credit Agreement Refinancing Indebtedness in respect thereof shall be unsecured, and (vii) the covenants and events of defaults contained in such Credit Agreement Refinancing Indebtedness are not materially more restrictive, taken as a whole, to Holdingsthe Borrower and its Restricted Subsidiaries than those applicable to the Refinanced Debt, taken as a whole, as determined in Holdings’the Borrower’s good faith judgment in consultation with the Administrative Agent (except for (A) covenants and events of default applicable only to periods after the Latest Maturity Date in effect at the time of the incurrence or issuance of any such Credit Agreement Refinancing Indebtedness or (B) unless the Borrowers enterBorrower enters into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to add such more restrictive terms for the benefit of the Lenders).

Credit Date” means the date of a Credit Extension.

Credit Document” means any of this Agreement, the Notes, if any, theany applicable Intercreditor Agreement, any other intercreditor agreementarrangement entered into pursuant to this Agreement, each Notice, each Counterpart Agreement, if any, each Extension Amendment, each Joinder Agreement, each Refinancing Amendment, each Collateral Document, any other document or instrument designated by the BorrowersBorrower and the Administrative Agent as a “Credit Document” and, except for purposes of Section 10.5, the Fee Letter and the 2019 Incremental Fee Letter.

Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.

Credit Party” means eachthe Borrower, Holdings and each other Guarantor.

Cure Amount” as defined in Section 8.4(a).

Cure Right” as defined in Section 8.4(a).

 

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Cure Right Fiscal Quarter” as defined in Section 8.4(b).

Debt Fund Affiliate” means any Affiliate of the Sponsor (other than Holdings and its Subsidiaries and a natural person) that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business and with respect to which the Persons making investment decisions for such applicable Affiliate are not primarily engaged in the making, acquiring or holding equity investments (directly or indirectly) in Holdingsthe Borrower or any of its Subsidiaries.

Debtor Relief Laws” means (i) the Bankruptcy Code, (ii) any similar foreign, federal or state law for the relief of debtors and (iii) 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.

Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

Defaulting Lender” means, subject to Section 2.22(b), any Lender that (i) has failed to (a) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder, or (b) pay to the Administrative Agent, the Issuing Bank, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (ii) has notified Holdingsthe Borrower, the Administrative Agent or the Issuing Bank or Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (iii) has failed, within three Business Days after written request by the Administrative Agent or Holdingsthe Borrower, to confirm in writing to the Administrative Agent and Holdingsthe Borrower that it will comply with its prospective funding obligations hereunder (provided, such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon receipt of such written confirmation by the Administrative Agent and Holdingsthe Borrower), (iv) has, or has a direct or indirect parent company that has, (a) become the subject of a proceeding under any Debtor Relief Law, (b) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (c) become the subject of a Bail-In Action; provided, a Lender shall not be a Defaulting Lender solely by virtue of (1) an Undisclosed Administration or (2) the ownership or acquisition of any equity interest in such Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (i) through (iv) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22(b)) upon delivery of written notice of such determination to Holdingsthe Borrower, the Issuing Bank, the Swing Line Lender and each Lender.

Delayed Approvals, Guarantees and Security” as defined in Section 3.1(r).

Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by anythe Borrower or any Restricted Subsidiary in connection with an Asset Sale pursuant to Section 6.9(i) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of Holdingsthe Borrower, setting forth the basis of such valuation, less the amount of cash received in connection with any subsequent sale of such Designated Non-Cash Consideration.

 

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

Disqualified Lender” means, on any date, (i) any Person designated by Holdings or a, the Borrower or any Released Borrower as a “Disqualified Lender” by written notice delivered to the Administrative Agent prior to July 22, 2017, (ii) any Person that is a direct competitor of Holdings, anythe Borrower or any of Holdings’ otherits Subsidiaries, which Person has been designated by Holdings or athe Borrower as a “Disqualified Lender” by written notice to the Administrative Agent and the Lenders (including by posting such notice to the Platform) not less than 3 Business Days prior to such date and (iii) any Affiliates of Persons described in preceding clause (i) or (ii) (other than such Affiliates that are bona fide fixed income investors, debt funds, regulated bank entities or unregulated lending entities generally engaged in making, purchasing, holding or otherwise investing in commercial loans, debt securities or similar extensions of credit in the ordinary course of business); provided that, if such Person is managed, sponsored or advised by any Person controlling, controlled by or under common control with a direct competitor of Holdings, anythe Borrower or any of Holdings’ otherits Subsidiaries, only to the extent that no personnel involved with the investment in such competitor (A) makes (or has the right to make or participate with others in making) investment decisions on behalf of such fixed income investor, debt fund, regulated bank entity or unregulated lending entity or (B) has access to any information (other than information that is publicly available) relating to Holdings, anythe Borrower or any entity that forms a part of any of Holdings’, anythe Borrower’s or any of their respective businesses or any of Holdings’ or anybusiness or any of the Borrower’s respective Subsidiaries) that are either (1) identified in writing by Holdings or anythe Borrower to the Administrative Agent and the Lenders from time to time or (2) clearly identifiable as an affiliate of such Persons solely on the basis of such Affiliate’s name; provided, further, that (x) to the extent any Persons is identified as a Disqualified Lender in writing by Holdings or anythe Borrower to the Administrative Agent after the Closing Date pursuant to clause (ii) or (iii)(B)(1) above, such designation shall become effective three Business Days thereafter and the inclusion of such persons as Disqualified Lenders shall not retroactively apply to prior assignments or participations or any of the Loans or Commitments hereunder and (y) “Disqualified Lender” shall exclude any Person that anythe Borrower has designated as no longer being a “Disqualified Lender” by written notice delivered to the Administrative Agent from time to time.

Division/Series Transaction” means, with respect to any Credit Party and/or any of its Subsidiaries that is a limited liability company organized under the laws of the State of Delaware, that any such Person (a) divides into two or more Persons (whether or not the original Credit Party or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case, as contemplated under the laws of the State of Delaware.

 

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Dollar Amount” means, at any time: (i) with respect to any Loan denominated in Dollars (including, with respect to any Swing Line Loan, any funded participation therein), the principal amount thereof then outstanding (or in which such participation is held), (ii) with respect to any Loan denominated in any Alternative Currency, the principal amount thereof then outstanding in the relevant Alternative Currency, converted to Dollars in accordance with Section 1.8 and 2.28, (iii) with respect to any Loan or any other Indebtedness denominated in any currency other than Dollars or any Alternative Currency, the principal amount thereof then outstanding in the relevant currency, converted to Dollars in accordance with Section 1.8, and (iv) with respect to any Letter of Credit (or any risk participation therein), (a) if denominated in Dollars, the amount thereof, (b) if denominated in any Alternative Currency, the amount thereof converted to Dollars in accordance with Sections 1.8, 2.4 and 2.28 and (c) if denominated in any currency other than Dollars or any Alternative Currency, the amount thereof converted to Dollars in accordance with Section 1.8.

Dollars” and the sign “$” mean the lawful money of the United States of America.

Domestic Subsidiary” means a Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.

DQ List” as defined in Section 10.6(e).

Dutch Auction” has the meaning set forth in Section 10.6(c).

Dutch Collateral Documents” means (a) each document and/or instrument listed under the heading entitled “Dutch Collateral Documents” on Schedule F-1, and (b) each other document or instrument governed by the laws of the Netherlands that creates or evidences or which is expressed to create or evidence any Lien on Collateral granted or required to be granted pursuant to any Credit Document.

Earn-out Indebtedness” means earn-out obligations and other deferred consideration incurred in connection with a Permitted Acquisition with respect to which the obligation to pay and/or the calculation of the amount required to be paid is contingent or based upon a Person, or any division, profit center or product line thereof, achieving certain targeted performance levels, in each case, to the extent stated as a liability on the balance sheet of the acquiring Person in accordance with GAAP.

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 clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

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

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

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.6(b)(iii), 10.6(b)(v) and 10.6(b)(vi) (subject to such consents, if any, as may be required under Section 10.6(b)(iii)); provided, in no event shall a Disqualified Lender be an Eligible Assignee without the Borrowers’Borrower’s consent, unless an Event of Default shall have occurred and be continuing.

 

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Eligible Counterparty” means the Administrative Agent, any Affiliate of the Administrative Agent, any Lender and any Affiliate of any Lender, in each case, that from time to time enters into a Secured Swap Contract with anythe Borrower or any Restricted Subsidiary; provided, the term “Eligible Counterparty” shall include any Person that is the Administrative Agent, an Affiliate of the Administrative Agent, a Lender or an Affiliate of a Lender as of the date that such Person enters into a Secured Swap Contract, but subsequently ceases to be the Administrative Agent, an Affiliate of the Administrative Agent, a Lender or an Affiliate of a Lender, as the case may be.

Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such plan is subject to ERISA) (excluding any Multiemployer Plan) which is sponsored, maintained or contributed to by, or required to be contributed to by, Holdings, anythe Borrower or any of the Restricted Subsidiaries, but excluding any Foreign Pension Plan.

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

Environmental Laws” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them) Laws, Governmental Authorizations, or any other requirements of Governmental Authorities relating to (i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to Holdings, anythe Borrower or any of the Restricted Subsidiaries or any Facility.

Equity Contribution” has the meaning set forth in Section 3.1(e)(ii).

Equity Interests” means all shares, shares of capital stock, partnership interests (whether general, limited or exempted limited), limited liability company membership interests, beneficial interests in a trust and any other interest or participation that confers on a Person the right to receive a share of profits or losses, or distributions of assets, of an issuing Person, including any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but excluding any debt Securities convertible into such Equity Interests.

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

ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member.

 

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ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30 day notice to the PBGC has been waived by regulation); (ii) with respect to any Pension Plan, the failure to meet the minimum funding standard of Section 412 of the Code (whether or not waived in accordance with Section 412(c)) or the failure to make by its due date a required installment under Section 430(j) of the Code or, with respect to any Multiemployer Plan, the failure to make any required contribution in accordance with Section 515 of ERISA or the application for a waiver of the minimum funding standard, within the meaning of Sections 412(c) of the Code; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Holdings, anythe Borrower or any of the Restricted Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Holdings, anythe Borrower or any of the Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan or Multiemployer Plan; (vi) the imposition of liability on any ERISA Party pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) with respect to a Multiemployer Plan, the withdrawal of any ERISA Party in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) if there is any potential liability to the ERISA Parties therefor, or the receipt by any ERISA Party of notice that such plan is insolvent pursuant to Section 4245 of ERISA, or that such plan is to terminate or has terminated under Section 4041A of ERISA (to the extent such termination will or is likely to result in a liability to the ERISA Parties) or under 4042 of ERISA; (viii) the occurrence of an act or omission which could reasonably be expected to give rise to the imposition on the ERISA Parties of fines, penalties, taxes or related charges under Chapter 43 of Title 26 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits), suit, action, proceeding, hearing, audit or, to the knowledge of Holdings, LLC Subsidiary or anythe Borrower, investigation against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against an ERISA Party in connection with any Employee Benefit Plan; (x) receipt from the IRS of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; or (xi) the imposition of a lien on the assets of an ERISA Party pursuant to Section 430(k) of the Code or Section 303(k) or Section 4068 of ERISA or (xii) a violation of Section 436 of the Code by any Pension Plan.

ERISA Party” means Holdings, anythe Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate of either of the foregoing.

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

Eurocurrency Reserve Requirements” means as applied to a Eurodollar Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under any regulations of the Board of Governors or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board of Governors) maintained by a member bank of the Federal Reserve System.

Eurodollar Base Rate” means the rate per annum equal to (i) with respect to any Eurodollar Loan or Letter of Credit denominated in Dollars, the higher of (a) the rate described in clause (i) of the definition of Screen Rate as of 11:00 a.m., London time, on the Quotation Day, for deposits in Dollars and (b) 1.00% per annum and (ii) with respect to any Eurodollar Loan or Letter of Credit denominated in any Alternative Currency, the higher of (a) the rate described in clause (ii) of the definition of Screen Rate as of 11:00 a.m., London time, on the Quotation Day, for deposits in such Alternative Currency and (b) 1.00% per annum.

 

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Eurodollar Loan” means a Loan, whether denominated in Dollars or in an Alternative Currency, bearing interest at a rate determined by reference to the applicable Adjusted Eurodollar Rate.

Eurodollar Rate” means with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum equal to (x) the Eurodollar Base Rate as of such date divided by (y) (1.00 minus Eurocurrency Reserve Requirements as of such date).

Event of Default” as defined in Section 8.1.

Exchange Act” means the Securities Exchange Act of 1934, and any successor statute.

Exchange Rate” means and refers to the nominal rate of exchange (vis-à-vis Dollars) for a currency other than Dollars that appears on the Bloomberg Foreign Exchange Rates and World Currencies Page for such currency on the date of determination (or, in the event such rate does not appear on such 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), expressed as the number of units of such other currency per one Dollar.

Exchange Rate Reset Date” has the meaning specified in Section 2.28.

Excluded Assets” means (i) particular assets if and for so long as, if, in each case, reasonably agreed by the Administrative Agent and the BorrowersBorrower , (x) the cost of creating or perfecting such pledges or security interests in such assets exceed the practical benefits to be obtained by the Lenders therefrom or (y) with respect to assets of a Foreign Credit Party, such assets are not customarily pledged under the laws of the jurisdiction of organization of such Person to secure general “all asset” secured bank credit facilities, (ii) motor vehicles, airplanes and other assets subject to certificates of title, to the extent a Lien therein cannot be perfected by (x) the filing of a UCC financing statement or similar action under the Laws of any jurisdiction in which a Credit Party is organized or in the District of Columbia or (y) solely entering into of a security or similar agreement, (iii) (A) any fee owned real property (other than Material Real Estate Assets) and (B) leasehold interests (including requirements to deliver landlord lien waivers, estoppels and collateral access letters), except to the extent a lien thereon can be perfected solely by the entering into of a security or similar agreement, (iv) any assets to the extent the creation or perfection of pledges thereof, or security interests therein, would reasonably be expected to result in material adverse tax consequences to Holdings, anythe Borrower or any of theits Restricted Subsidiaries under Section 956 of the Code, as reasonably determined by the BorrowersBorrower and the Administrative Agent, (v) property and assets to the extent that a pledge thereof or creation of security interest therein is restricted by applicable Laws (including, without limitation, rules and regulations of any Governmental Authority or agency) or which would require governmental consent, approval, license or authorization (in each case, only for so long as such restriction remains in effect or until such consent, approval or license is obtained, as applicable), other than to the extent such prohibition or limitation is rendered ineffective under the UCC or other applicable Law notwithstanding such prohibition, (vi) Equity Interests in any non-wholly owned Subsidiary of Holdingsthe Borrower or a joint venture of a Credit Party to the extent a security interest is not permitted to be granted by the terms of such Person’s organizational, incorporation, formation or joint venture documents or would require the consent of one or more third parties (other than any Credit Party or any Subsidiary thereof) that has not been obtained (to the extent such prohibition was in existence on the Closing Date, or, if not entered into in contemplation thereof, at the time of acquisition of such Person) (after giving effect to the relevant anti-assignment provisions of the UCC or other applicable Laws), (vii) any lease, license, permit or other agreement (including with respect to any lease, Purchase Money Indebtedness or similar arrangement the assets subject thereto) to the extent that, and so long as, a grant of a security interest therein, or in the property or assets that secure the underlying obligations with respect

 

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thereto or are subject to such lease, (A) is prohibited by applicable Laws other than to the extent such prohibition is rendered ineffective under the UCC or other applicable Laws notwithstanding such prohibition or (B) would violate or invalidate such lease, license, permit or agreement (other than any lease, license, permit or agreement solely among Holdings, the BorrowersBorrower and the Restricted Subsidiaries), or create a right of termination in favor of, or require the consent of, any other party thereto (other than Holdings, the BorrowersBorrower or any of the Restricted Subsidiaries) (in each case, after giving effect to the relevant provisions of the UCC or other applicable Laws), in each case, other than the proceeds and receivables thereof, and only to the extent that and for so long as such limitation on such pledge or security interest is otherwise permitted under this Agreement, (viii) governmental licenses, state or local franchises, charters and authorizations and any other property and assets to the extent that such security interest is restricted by (A) the terms of such license, franchise, charter or authorization or (B) applicable Laws (including, without limitation, rules and regulations of any Governmental Authority or agency), or the pledge or creation of a security interest in which would require governmental consent, approval, license or authorization (and such consent, approval license or authorization has not been obtained), other than to the extent such prohibition or limitation is rendered ineffective under the UCC or other applicable Law notwithstanding such prohibition (but excluding proceeds of any such governmental license), or otherwise require consent thereunder (and such consent has not been obtained) (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law), (ix) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law, (x) Margin Stock, (xi) Equity Interests of any Unrestricted Subsidiary and any Subsidiary that is a captive insurance company, not-for-profit entity or special purpose entity, (xii) any voting Equity Interests of any Excluded Tax Subsidiary in excess of 65% of the voting Equity Interests of such Excluded Tax Subsidiary, (xiii) any assets of Holdings, other than Holdings’ right title and interest in and to the Pledged U.S. Borrower Equity Interests, the Pledged Lux Holdco Equity Interests and the Pledged Intercompany Indebtedness, (xiv) any assets of LLC Subsidiary, other than LLC Subsidiary’s right title and interest in and to the Pledged U.S. Borrower Equity Interests, the Pledged Lux Holdco Equity Interests and the Pledged Intercompany Indebtedness[reserved], (xiv) [reserved] and (xv) Equity Interests of any Subsidiary acquired pursuant to a Permitted Acquisition or other permitted Investment financed with or that is subject to secured Indebtedness permitted pursuant to Section 6.1(i) if such Equity Interests are pledged as security for such Indebtedness if and for so long as the terms of such Indebtedness prohibit the creation of any other Lien on such Equity Interests; provided, Excluded Assets shall not include any proceeds, substitutions or replacements of any Excluded Assets referred to in clauses (i) through (xv) (unless such proceeds, substitutions or replacements would independently constitute Excluded Assets referred to in clauses (i) through (xv)).

Excluded Domestic Subsidiary” means any (i) Domestic Subsidiary that is owned (directly or indirectly) by a Foreign Subsidiary that is a CFC, (ii) Foreign Subsidiary Holding Company, or (iii) Domestic Subsidiary the principal assets of which are the Equity Interests of one or more Foreign Subsidiaries that are CFCs, other Excluded Domestic Subsidiaries and/or Foreign Subsidiary Holding Companies.

Excluded Subsidiary” as defined in the definition of “Guarantor Subsidiary”.

Excluded Swap Obligation” means, with respect to any Guarantor at any time, any Swap Obligation, if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is illegal at such time 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.

 

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Excluded Tax Subsidiary” means any Restricted Subsidiary that is (i) an Excluded Domestic Subsidiary or (ii) a Foreign Subsidiary that is a CFC.

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment requested by the BorrowersBorrower under Section 2.23) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.20(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

Executive Order No. 13224” means that certain Executive Order No. 13224, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

Existing Credit Agreement” means that certain Credit Agreement, dated as of July 11, 2014, by and among Seller 1 and Corsair Memory, Inc., as borrowers, certain Subsidiaries of Seller 1, as guarantors, Bank of America, as administrative agent, swing line lender and L/C issuer, and the other lenders party thereto.

Existing Indebtedness” means the Indebtedness of the Acquired Business (a) under the Existing Credit Agreement, (b) under that certain letter agreement, dated as of June 23, 2015, by and among Corsair (Shenzhen) Trading Co., Ltd. and Bank of America, Guangzhou Branch, and (c) all other third party Indebtedness for borrowed money of the Acquired Business existing as of immediately prior to the effectiveness of this Agreement, other than Indebtedness described on Schedule 6.1.

Existing Letters of Credit” as defined in Section 2.4(m).

Extended Maturity Date” as defined in Section 2.24(a).

Extended Revolving Credit Commitments” as defined in Section 2.24(a).

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

Extended Term Loans” means any Term Loans that have been extended in accordance with Section 2.24(a).

Extension” as defined in Section 2.24(a).

Extension Amendments” as defined in Section 2.24(f).

 

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Extension Offer” as defined in Section 2.24(a).

Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now owned, leased, operated or used by Holdings, anythe Borrower or any Restricted Subsidiaries.

Fair Share” as defined in Section 7.2.

Fair Share Contribution Amount” as defined in Section 7.2.

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 intergovernmental agreements entered into in connection therewith, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any current or future US or non-US regulations, legislation, rules, guidance notes, practices adopted pursuant to any such intergovernmental agreement or official interpretations of the foregoing or analogous provisions of non-US law.

FCPA” means the United States Foreign Corrupt Practices Act of 1977, as amended.

Federal Flood Insurance” means federally backed Flood Insurance available under the NFIP to owners of real property improvements located in Special Flood Hazard Areas in a community participating in the NFIP.

Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1.00%) of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing reasonably selected by it in good faith. If the Federal Funds Effective Rate cannot reasonably be determined in accordance with the foregoing clauses, then the Administrative Agent may in its reasonable discretion, and acting in consultation with the Required Lenders, reasonably select in good faith an alternative method for determining the Federal Funds Rate.

Fee Letter” means the Fee Letter, dated July 22, 2017, by and among Holdings, Macquarie Capital Funding LLC, Macquarie Capital (USA) Inc., BNP Paribas and BNP Paribas Securities Corp.

FEMA” means the Federal Emergency Management Agency (or any successor agency), a component of the U.S. Department of Homeland Security that administers the NFIP.

Fifth Amendment” means Amendment No. 5 to the First Lien Credit and Guaranty Agreement, dated as of December 19, 2019, by and among Holdings, the Borrower, the Released Borrowers, LLC Subsidiary, certain Subsidiaries of Holdings party thereto, as Guarantors, the Administrative Agent and the Lenders party thereto (including the 2019 Incremental Term Loan Lenders).

Fifth Amendment Effective Date” has the meaning assigned to such term in the Fifth Amendment.

Financial Covenant” means the covenant set forth in Section 6.7.

Financial Covenant Event of Default” as defined in Section 8.1(c).

 

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Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer or treasurer (or other officer acceptable to the Administrative Agent) of Holdings (or of its general partner)the Borrower that such financial statements fairly present, in all material respects, the financial condition of Holdingsthe Borrower and its Restricted Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.

Financial Plan” as defined in Section 5.1(f).

FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.

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

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

Fiscal Year” means the fiscal year of Holdingsthe Borrower ending on December 31 of each calendar year.

Flood Insurance” means, for any Mortgaged Property located in a Special Flood Hazard Area, Federal Flood Insurance or private insurance reasonably satisfactory to the Administrative Agent, in either case, that (i) meets the requirements set forth by FEMA in its Mandatory Purchase of Flood Insurance Guidelines under the NFIP, (ii) shall include a deductible not to exceed $50,000 and (iii) shall have a coverage amount equal to the lesser of (x) the “replacement cost value” of the buildings and any personal property Collateral located on the Mortgaged Property as determined under the NFIP or (y) the maximum policy limits set under the NFIP.

Flood Notice” has the meaning assigned thereto in Section 5.12(a)(v)(B).

Foreign Collateral Documents” means, individually and collectively, (a) the Cayman Collateral Documents, (b) the Dutch Collateral Documents, (c) the Hong Kong Collateral Documents, (d) the Luxembourg Collateral Documents, (e) any other Collateral Document entered into by a Foreign Credit Party which document is governed under the laws of any jurisdiction other than the United States, any state thereof or the District of Columbia and (f) all other instruments, documents and agreements delivered by any Foreign Credit Party pursuant to any of the documents described in preceding clauses (a) through (e) in order to grant to, or perfect in favor of, a Collateral Agent, for the benefit of the Secured Parties, the Lien on Collateral granted or required to be granted under the documents described in preceding clauses (a) through (e).

Foreign Credit Party as defined in Section 10.29means any Credit Party that is a Non-U.S. Person.

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

 

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Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation fund, but excluding any statutory plan not maintained by Holdings, anythe Borrower or any of the Restricted Subsidiaries) or other similar program established or maintained outside of the United States by Holdings, anythe Borrower or any of the Restricted Subsidiaries primarily for the benefit of employees of Holdings, anythe Borrower or any of the Restricted Subsidiaries residing outside of the United States that provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

Foreign Subsidiary” means a Subsidiary that is not a Domestic Subsidiary.

Foreign Subsidiary Holding Company” means any Domestic Subsidiary substantially all of the assets of which consist of the Equity Interests (or Equity Interests and other Securities) of one or more Foreign Subsidiaries, Excluded Domestic Subsidiaries and/or other Foreign Subsidiary Holding Companies.

Fronting Exposure” means, at any time there is a Defaulting Lender, (i) with respect to the Issuing Bank, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Obligations with respect to Letters of Credit issued by the Issuing Bank other than Letter of Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (ii) with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of outstanding Swing Line Loans made by the Swing Line Lender other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

Fourth Amendment” means Amendment No. 4 to the First Lien Credit and Guaranty Agreement, dated as of October 11, 2018, by and among the Borrower, the Released Borrowers, Holdings, LLC Subsidiary, certain Subsidiaries of Holdings party thereto, as Guarantors, the Administrative Agent and the Lenders party thereto (including the 2018 Replacement Term Lenders and the Incremental Term Loan Lenders).

Fourth Amendment Effective Date” has the meaning assigned to such term in the Fourth Amendment.

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

Funded Indebtedness” means, as to any Person at a particular time, without duplication, all Indebtedness of the type described in clauses (i), (ii), (iii) (but only with respect to any notes payable), and (vi) (but only to the extent that any letter of credit or similar instrument has been drawn and not reimbursed) of the definition thereof of Holdingsthe Borrower and its Restricted Subsidiaries (or, if higher, the par value or stated face amount of all such Indebtedness (other than zero coupon Indebtedness)) determined on a consolidated basis in accordance with GAAP.

Funding Guarantor” as defined in Section 7.2.

Funding Notice” means a written notice substantially in the form of Exhibit A-1 or otherwise acceptable to the Administrative Agent.

GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.

Governmental Act” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.

 

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

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

Granting Lender” as defined in Section 10.6(h).

Grantor” as defined in the Pledge and Security Agreement.

Guaranteed Obligations” as defined in Section 7.1.

Guarantor” means Holdings, LLC Subsidiary and each Guarantor Subsidiary.

Guarantor Subsidiary” means each Subsidiary of Holdingsthe Borrower, other than (i) any Excluded Tax Subsidiary that is acquired after the Closing Date, absent agreement of the Borrower, (ii) any Immaterial Subsidiary, (iii) any Subsidiary acquired after the Closing Date that is prohibited by applicable Law or by any Contractual Obligation existing at the time of such acquisition thereof from guaranteeing the Obligations (but only so long as such prohibition exists), or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guaranty and such consent, approval, license or authorization not has been received after such Subsidiary’s commercially reasonable efforts to obtain such consent, approval, license or authorization, (iv) any Subsidiary prohibited or restricted from guaranteeing the Obligations by Contractual Obligations existing on the Closing Date (but only so long as such prohibition or restriction exists); (v) captive insurance companies, (vi) not-for-profit Subsidiaries, (vii) special purpose entities, (viii) any Unrestricted Subsidiary, (ix) any Subsidiary that is not a wholly-owned Subsidiary of Holdingsthe Borrower, (x) any Subsidiary that is not organized in a Qualified Jurisdiction, and (xi) any other Subsidiary with respect to which, in the reasonable judgment of the BorrowersBorrower and the Administrative Agent (confirmed in writing by notice to Holdingsthe Borrower), the cost or other consequences of providing a Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom (any such excluded Subsidiary pursuant to preceding clauses (i) through (xi), inclusive, of this definition of “Guarantor Subsidiary” being referred to as an “Excluded Subsidiary”); provided, however, notwithstanding the foregoing, any Subsidiary of Holdingsthe Borrower that is a guarantor or an obligor in respect of any Credit Agreement Refinancing Indebtedness, any Second Lien Term Facility Indebtedness, any Additional Ratio Debt or any Permitted Refinancing of any of the foregoing shall be a Guarantor Subsidiary.

Guaranty” means the guaranty of each Guarantor set forth in Section 7.

Hazardous Materials” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.

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

 

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Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the Laws applicable to any Lender which are presently in effect or, to the extent allowed by Law, under such applicable Laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable Laws now allow.

Historical Financial Statements” means (i) the audited consolidated financial statements of Seller 1 for the Fiscal Years ended 2014, 2015 and 2016, consisting of consolidated balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such Fiscal Years, with an unqualified audit opinion thereon by an accounting firm reasonably acceptable to the Lead Arrangers, and (ii) the unaudited consolidated financial statements of Seller 1 for the fiscal quarters ended March 31, 2017 and June 30, 2017, consisting of a consolidated balance sheet and the related consolidated statements of income, stockholders’ equity and cash flows for such fiscal quarters.

Holdings ” means Corsair Group (Cayman), LP, a Cayman Islands exempted limited partnership acting by its general partner EagleTree-Carbide (GP), LLC, a Cayman Islands limited liability company.

HK Process Agent” has the meaning set forth in Section 10.28.

Holdings” as defined in the preamble hereto.

Hong Kong Collateral Documents” means (a) each document and/or instrument listed under the heading entitled “Hong Kong Collateral Documents” on Schedule F-1, and (b) each other document or instrument governed by the laws of Hong Kong that creates or evidences or which is expressed to create or evidence any Lien on Collateral granted or required to be granted pursuant to any Credit Document.

Immaterial Subsidiary” means, at any time, any Restricted Subsidiary (other than a Borrower, LLC Subsidiary or Lux Holdco) that has been designated by Holdingsthe Borrower in writing to the Administrative Agent as an “Immaterial Subsidiary” for purposes of this Agreement (and not subsequently designated by Holdingsthe Borrower as no longer an Immaterial Subsidiary) that has (a) contributed 2.50% or less of the Consolidated Adjusted EBITDA of Holdingsthe Borrower and the Restricted Subsidiaries for the most recently ended Test Period, and (b) had consolidated assets representing 2.50% or less of the total consolidated assets of Holdingsthe Borrower and the Restricted Subsidiaries as of the last day of the most recently ended Test Period; provided, if at any time and from time to time after the Closing Date, Immaterial Subsidiaries comprise in the aggregate (x) more than 5.00% of the Consolidated Adjusted EBITDA of Holdingsthe Borrower and the Restricted Subsidiaries for the most recently ended Test Period or (y) more than 5.00% of the consolidated assets of Holdingsthe Borrower and the Restricted Subsidiaries as of the last day of the most recently ended Test Period, then the BorrowersBorrower shall, promptly, (i) designate in writing to the Administrative Agent that one or more of such Restricted Subsidiaries is no longer an Immaterial Subsidiary for purposes of this Agreement to the extent required such that the foregoing condition ceases to be true and (ii) comply with the provisions of Section 5.11 applicable to such Restricted Subsidiaries; and provided, further that Holdings may designatedthe Borrower may designate and redesignate a Restricted Subsidiary as an Immaterial Subsidiary at any time, subject to the terms set forth in this definition.

Incremental Facility” as defined in Section 2.25

Incremental Increase Date” as defined in Section 2.25(b).

 

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Incremental Incurrence-Based Amount” has the meaning set forth in the definition of “Maximum Incremental Facilities Amount”.

Incremental Revolving Credit Commitments” as defined in Section 2.25(a).

Incremental Revolving Lender” as defined in Section 2.25(b).

Incremental Revolving Loan” as defined in Section 2.25(d).

Incremental Term Loan” as defined in Section 2.25(e).

Incremental Term Loan Commitments” as defined in Section 2.25(a).

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

Incremental Term Loan Lender” as defined in Section 2.25(b).

Incremental Term Loan Note” means a promissory note in the form of Exhibit B-4 or otherwise acceptable to the Administrative Agent.

Indebtedness”, as applied to any Person, means, without duplication, (i) indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases that is required to be classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable, drafts accepted, bonds, debentures, indentures, credit agreements and similar instruments representing extensions of credit, regardless of whether representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding (x) any such obligations incurred under ERISA, (y) accounts payable incurred in the ordinary course of business that are not overdue by more than ninety days, unless such payables are being actively contested pursuant to appropriate proceedings and (z) earn-out obligations and other contingent consideration obligations incurred in connection with any Permitted Acquisition or other Investment other than Earn-out Indebtedness that is (a) due (or remains unpaid) for more than ninety day from the date of incurrence of the obligation in respect thereof, unless such amount is being actively contested pursuant to appropriate proceedings, or (b) evidenced by a note or similar written instrument); (v) indebtedness secured by a Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; provided that, if such Person has not assumed such obligations, then the amount of Indebtedness of such Person for purposes of this clause (v) shall be equal to the lesser of the amount of the obligations of the holder of such obligations and the fair market value of the assets of such Person which secure such obligations; (vi) the face amount of any letter of credit or similar instrument issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) Disqualified Equity Interests; (viii) the direct or indirect guaranty of obligations of another of the nature described in any of the forgoing clauses (i) through (vii); provided that the amount of any such guaranty shall be deemed to be the lower of (a) the amount equal to the stated or determinable amount of the primary obligation at such time in respect of which such guaranty is made and (b) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such guaranty, unless such primary obligation and the maximum amount for which such Person may be liable are not stated or determinable, in which case the amount of such guaranty shall be such Person’s maximum reasonably anticipated liability in respect thereof as determined by the BorrowersBorrower in good faith; (ix) solely for purposes of Section 6.1 and 8.1(a), net obligations of such Person under any Swap Contract, provided, 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; and (x) Purchase Money Indebtedness.

 

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

Indemnitee” as defined in Section 10.3(a).

Installment” as defined in Section 2.12.

Installment Date” as defined in Section 2.12

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

Intercreditor Agreement” means the Intercreditor Agreement, dated as of the Closing Date, among the Administrative Agent, the Second Lien Administrative Agent and the Credit Parties(a) an intercreditor agreement, substantially in the form of Exhibit M or (b) any other intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent.

Interest Payment Date” means with respect to (i) any Base Rate Loan, the last Business Day of each March, June, September and December of each year, commencing on September 30, 2017, and the final maturity date of such Loan; and (ii) any Eurodollar Loan, the last day of each Interest Period applicable to such Loan and the final maturity date of such Loan; provided, in the case of each Interest Period of longer than three months, the term “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period.

Interest Period” means, in connection with a Eurodollar Loan, an interest period of one, two, three or six months (or, with the consent of all affected Lenders, twelve months or a period of less than one month), as selected by the BorrowersBorrower in the applicable Funding Notice or Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period 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, subject to clauses (c) and (d) of this definition, end on the last Business Day of a calendar month; (c) no Interest Period with respect to any portion of any Class of Term Loans shall extend beyond such Class’s Term Loan Maturity Date, (d) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Credit Commitment Termination Date and (e) the BorrowersBorrower shall be permitted to select an Interest Period ending on September 30, 2017, pursuant to a Conversion/Continuation Notice delivered to the Administrative Agent on or about the Closing Date (the “Specified Notice”).

Interim IPO/Reorganization Subsidiary” means any Subsidiary of Holdings formed on or prior to the Sixth Amendment Effective Date pursuant to any of the intermediate reorganization transactions described in clauses (e) and (f) of the definition of Qualified Borrower IPO/Reorganization Transactions.

Internally Generated Cash” means, with respect to any period, any cash of Holdingsthe Borrower or any of its Restricted Subsidiaries generated during such period, it being understood and agreed that any cash (i) that constitutes any portion of the Available Amount (other than the initial $20,000,000 starter basket), (ii) that constitutes Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, or (iii) that is the proceeds of (a) any incurrence of long term Indebtedness, (b) any issuance of Equity Interests or (c) any contribution of capital, in each case, shall not constitute Internally Generated Cash.

 

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Interpolated Screen Rate” means, with respect to any Eurodollar Loan for any Interest Period, a rate per annum which results from interpolating on a linear basis between (a) the applicable Screen Rate for the longest maturity for which a Screen Rate is available that is shorter than such Interest Period and (b) the applicable Screen Rate for the shortest maturity for which a Screen Rate is available that is longer than such Interest Period, in each case as of 11:00 a.m., London time, on the Quotation Day.

Intra-Group Liabilities” as defined in Section 7.15.

Investment” means (i) any purchase or other acquisition by Holdings, anythe Borrower or any of the Restricted Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person; (ii) any redemption, retirement, purchase or other acquisition for value, by Holdings, anythe Borrower or any of the Restricted Subsidiaries from any Person, of any Equity Interests of such Person; (iii) any loan, advance or capital contribution by Holdings, anythe Borrower or any of the Restricted Subsidiaries to any other Person; (iv) any guarantee or assumption of Indebtedness or other obligations by Holdings, anythe Borrower or any of the Restricted Subsidiaries; and (v) the purchase or other acquisition by Holdings, anythe Borrower or any of the Restricted Subsidiaries (in one or a series of related transactions) of all or substantially all of the property or 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 at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment, but reduced by the amount of actual Returns on such Investment.

IRS” means the United States Internal Revenue Service.

Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3 or otherwise in form reasonably acceptable to the Administrative Agent.

Issuing Bank” means (a) Macquarie Capital Funding LLC, BNP Paribas, any respective Affiliate thereof and any financial institution designated by Macquarie Capital Funding LLC or BNP Paribas, in its capacity as issuer of any Letter of Credit hereunder, (b) Bank of America, solely if Bank of America becomes a Revolving Lender and (c) any other Lender (and any financial institution designated by such Lender) that becomes an Issuing Bank under Section 2.4(j), as an Issuing Bank hereunder, together with its permitted successors and assigns in such capacity. If there is more than one Issuing Bank at any time, references herein and in the other Credit Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context may require.

Joinder Agreement” means an agreement substantially in the form of Exhibit K or otherwise in form reasonably acceptable to the Administrative Agent.

Junior Financing” means (a) any Second Lien Term Facility Indebtedness, (b) any Permitted Unsecured Refinancing Debt, (cb) any Permitted Second Priority Refinancing Debt, (dc) any Additional Ratio Debt that is secured by a Lien that is contractually junior to the Lien on the Collateral securing the Obligations or is contractually subordinated to the Obligations and (ed) any other Indebtedness for borrowed money that is contractually junior to the Lien on the Collateral securing the Obligations or is unsecured (or unsecured and contractually subordinated to the Obligations).

Junior Financing Documents” means any documentation governing any Junior Financing.

 

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

Laws” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, guidances, guidelines, ordinances, rules, judgments, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions, whether now or hereafter in effect.

Lead Arrangers” means, collectively, Macquarie Capital (USA) Inc. and BNP Paribas Securities Corp.

Lender” means each Person listed on the signature pages hereto as a Lender, and any other Person (other than a natural Person) that becomes a party hereto pursuant to an Assignment and Assumption Agreement, an Extension Amendment, a Joinder Agreement or a Refinancing Amendment.

Lender Affiliated Parties” as defined in Section 10.22.

Lender Party” as defined in Section 10.17.

Letter of Credit” means (i) a commercial or standby letter of credit issued or to be issued by the Issuing Bank pursuant to this Agreement; provided that Macquarie Capital Funding LLC (and any of its Affiliates), as an Issuing Bank, shall only be required to issue standby letters of credit and (ii) all Existing Letters of Credit.

Letter of Credit Obligations” means, as at any date of determination, the sum of (i) the maximum aggregate Dollar Amount that is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding, plus (ii) the aggregate Dollar Amount of all drawings under Letters of Credit honored by the Issuing Bank and not theretofore reimbursed by or on behalf of the BorrowersBorrower .

Letter of Credit Sub-limit” means, as of any date of determination, the lower of (i) a Dollar Amount equal to $5,000,000, and (ii) the aggregate amount of the Revolving Credit Commitments as of such date minus the Total Utilization of Revolving Credit Commitments as of such date, (a) up to $2,750,000 of which Macquarie Capital Funding LLC, in its capacity as an Issuing Bank, has agreed to provide as of the Closing Date, subject to any adjustment or reduction pursuant to the terms and conditions hereof (the “Macquarie Lender LC Cap”) and (b) up to $2,250,000 of which BNP Paribas, in its capacity as an Issuing Bank, has agreed to provide as of the Closing Date, subject to any adjustment or reduction pursuant to the terms and conditions hereof (the “BNPP LC Cap”).

Lien” means any lien, mortgage, pledge, assignment, security interest, charge or similar encumbrance (including any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing.

Limited Condition Acquisition” means any contractually committed Permitted Acquisition the consummation of which by Holdingsthe Borrower or any Restricted Subsidiary is not conditioned on the availability of, or on obtaining, third party financing.

Limited Recourse Pledge and Security Agreement” means the First Lien Limited Recourse Pledge and Security Agreement substantially in the form of Exhibit I.

 

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LLC Subsidiary” means Corsair Group (US), LLC (f/k/a EagleTree-Carbide Holdings (US), LLC), a Delaware limited liability company.

Loan” means a Term Loan, a Revolving Loan, a Swing Line Loan and an Incremental Term Loan.

Lux Borrower” as defined in the preamble hereto.

Lux Holdco” means Corsair Holdings (Lux) S.à r.l. (f/k/a EagleTree-Carbide Holdings S.à r.l.), a Luxembourg private limited liability company (société à responsabilité limitée), with registered office at 48, boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies under number B216.685.

Lux Subsidiary” means Corsair Acquisition (Lux) S.à r.l., a Luxembourg private limited liability company (société à responsabilité limitée) with registered office at 48, Boulevard Grande-Duchesse Charlotte, L - 1330 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Commerce and Companies register under number B216.833.

Luxembourg Collateral Documents” means (a) each document and/or instrument listed under the heading entitled “Luxembourg Collateral Documents” on Schedule F-1, and (b) each other document or instrument governed by the laws of Luxembourg that creates or evidences or which is expressed to create or evidence any Lien on Collateral granted or required to be granted pursuant to any Credit Document.

Luxembourg Guarantor” as defined in Section 7.15.

Macquarie Lender LC Cap” as defined in the definition of “Letter of Credit Sub-Limit”.

Management Agreement” means the Management Services Agreement, dated as of August 28, 2017, among EagleTree-Carbide Co-Invest, LP, a Cayman Islands exempted limited partnership, LLC Subsidiary, U.S.the Borrower, Holdings, Lux Holdco, Lux BorrowerSubsidiary, and EagleTree Capital, LP, a Delaware limited partnership, as the same may be amended, restated, modified, supplemented, extended, increased, renewed, refunded, replaced, restructured or refinanced from time to time.

Mandatory 1L IPO Prepayment Amount” as defined in Section 2.14(g).

Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to time.

Master Agreement” has the meaning set forth in the definition of “Swap Contract.”

Material Adverse Effect” means (i) on the Closing Date, a “Material Adverse Effect” as defined in the Closing Date Acquisition Agreement, and (ii) after the Closing Date, a material adverse effect on and/or with respect to (a) the business, operations, properties, assets or condition of Holdingsthe Borrower and its Restricted Subsidiaries, taken as a whole; (b) the ability of the Credit Parties, taken as a whole, to fully and timely perform their Obligations; (c) the legality, validity, binding effect or enforceability against the Credit Parties, taken as a whole, of the Credit Documents; or (d) the rights, remedies and benefits available to, or conferred upon, any Agent, the Issuing Bank and any other Secured Party under the Credit Documents, taken as a whole.

Material Real Estate Asset” means any fee-owned Real Estate Asset having a fair market value in excess of $5,000,000 that is not an Excluded Asset (other than by reason of clause (iii)(A) of the definition thereof).

 

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Maximum Incremental Facilities Amount” means, at any date of determination, the sum of (i) the result of (a) $50,000,000, minus (b) the sum of (1) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments made or obtained pursuant to Section 2.26 prior to such date in reliance on this clause (i), plus (2) the aggregate principal amount of Second Lien Additional Indebtedness incurred prior to the Sixth Amendment Effective Date in reliance on this clause (i) (or any comparable clause) of the definition of “Maximum Incremental Facilities Amount” (or any comparable definition) in the Second Lien Credit Agreement (it being understood that any such amount in the Second Lien Credit Agreement shall not exceed the applicable amount set forth in this clause (i)) (such amount, the “Shared Fixed Incremental Amount”) plus (ii) an additional unlimited amount provided that upon giving effect to the incurrence of such additional Indebtedness, the Consolidated First Lien Net Leverage Ratio is equal to or less than 4.00:1.00, (x) determined on a Pro Forma Basis as of the last day of the Test Period most recently ended prior to the date of the incurrence of such additional amount of Indebtedness, as if such additional amount of Indebtedness had been incurred on the first day of such Test Period and (y) calculated without the proceeds of such additional Indebtedness being netted from the Indebtedness for such calculation and, in the case of any such additional Indebtedness in the form of an Incremental Revolving Credit Commitments, assuming the full utilization thereof, whether or not actually utilized (such additional amount, the “Incremental Incurrence-Based Amount”).

For purposes of determining the Maximum Incremental Facilities Amount, (1) (x) the BorrowersBorrower may elect to utilize the Incremental Incurrence-Based Amount prior to the Shared Fixed Incremental Amount regardless of whether there is capacity available under the Shared Fixed Incremental Amount and (y) if the Shared Fixed Incremental Amount and the Incremental Incurrence-Based Amount are each available for utilization and the Borrowers doBorrower does not make an election, the BorrowersBorrower will be deemed to have elected to utilize the Incremental Incurrence-Based Amount before the Shared Fixed Incremental Amount and (2) in the case of any Incremental Term Loan the proceeds of which are to be used to finance a Limited Condition Acquisition, compliance with the Consolidated First Lien Net Leverage Ratio for calculation of the Incremental Incurrence-Based Amount may instead be determined, at the option of the BorrowersBorrower , as of the time of entry into the applicable definitive acquisition agreement (as opposed to at the time of incurrence of such Incremental Term Loan) and shall be calculated on a Pro Forma Basis as of the then most recent Test Period.

Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103 % of the Fronting Exposure and the Letter of Credit Obligations of the Issuing Bank with respect to Letters of Credit issued and outstanding at such time (calculated, in the case of any Letters of Credit denominated in any Alternative Currency, based on the Dollar Amount thereof) and (ii) otherwise, an amount determined by the Administrative Agent and the Issuing Bank in their reasonable discretion.

Minimum Extension Condition” as defined in Section 2.24(d).

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

Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument, in form reasonably acceptable to the Collateral Agent.

Mortgaged Property” means each Material Real Estate Asset for which a Mortgage is required pursuant to Section 5.11 and/or Section 5.12.

Multiemployer Plan” means any employee pension benefit plan which is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA which is contributed to by, or required to be contributed to by, Holdings, anythe Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate.

 

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NAIC” means The National Association of Insurance Commissioners, and any successor thereto.

Narrative Report” means, with respect to the financial statements for which such narrative report is prepared, a narrative report describing the operations of Holdingsthe Borrower and its Restricted Subsidiaries in the form prepared for presentation to senior management thereof for the applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate.

Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to (i) cash payments (including any cash received by way of release from escrow or deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by Holdings, anythe Borrower or any of the Restricted Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale, including (a) sales, transfer, income, gains or other taxes payable (or estimated in good faith by Holdingsthe Borrower to become payable) in connection with such Asset Sale, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans, any Junior Financing, any Credit Agreement Refinancing Indebtedness or any Second Lien Term Facility Indebtedness) that is secured by a Lien on the Equity Interests or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, (c) a 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 (a) above) (x) related to any of the applicable assets and (y) retained by the BorrowersBorrower or applicable Restricted Subsidiary, including, without limitation, pension and other post-employment benefit liabilities related to environmental matters or for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Holdings, anythe Borrower or any of the Restricted Subsidiaries in connection with such Asset Sale; provided, upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds, (d) the out of pocket expenses, costs and fees incurred with respect to legal, investment banking, brokerage, advisor and accounting and other professional fees, sales commissions and disbursements, survey costs, title insurance premiums and related search and recording charges, in each case actually incurred in connection with such sale or disposition and payable to a Person that is not an Affiliate of Holdingsthe Borrower, (e) in the case of any Asset Sale by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Asset Sale Proceeds thereof (calculated without regard to this clause (e)) attributable to minority interests and not available for distribution to or for the account of anythe Borrower or a wholly-owned Restricted Subsidiary as a result thereof and (f) in the case of any such cash payments received (or subsequently received) by any Foreign Subsidiary, any taxes that would be payable (or estimated in good faith by Holdingsthe Borrower to become payable) in connection with the repatriation of such cash proceeds to anythe Borrower or any Guarantor Subsidiary.

Net Insurance/Condemnation Proceeds” means an amount equal to (i) any cash payments or proceeds received by Holdings, anythe Borrower or any of the Restricted Subsidiaries (a) under any casualty insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of Holdings, anythe Borrower or any of the Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by Holdings, anythe Borrower or any of the Restricted Subsidiaries in connection with the adjustment or settlement of any claims of Holdings, suchthe Borrower or such Restricted Subsidiary in respect thereof, (b) any bona fide direct costs incurred in connection with any taking of such assets as referred to in clause (i)(b) of this definition, including sales, transfer, income, gains or other taxes payable (or estimated in good faith by the BorrowersBorrower to become payable) in connection therewith; provided that to the extent that any such estimate is in excess of the actual amount paid, such excess shall constitute Net Insurance/Condemnation Proceeds, (c) payment of the outstanding principal amount of, premium or

 

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penalty, if any, and interest on any Indebtedness (other than the Loans, any Junior Financing, any Credit Agreement Refinancing Indebtedness or any Second Lien Term Facility Indebtedness) that is secured by a Lien on the assets in question and that is required to be repaid under the terms thereof as a result of such casualty or condemnation, (d) amounts required to be turned over to landlords (or their mortgagees) pursuant to the terms of any lease to which Holdings, anythe Borrower or any of the Restricted Subsidiaries is party, (e) in the case of any casualty event or governmental taking involving an asset of a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Insurance/Condemnation Proceeds (calculated without regard to this clause (e)) attributable to minority interests and not available for distribution to or for the account of anythe Borrower or a wholly-owned Restricted Subsidiary as a result thereof and (f) in the case of any such cash payments or proceeds received (or subsequently received) by any Foreign Subsidiary, any taxes that would be payable (or estimated by Holdingsthe Borrower to become payable) in connection with the repatriation of such cash proceeds to anythe Borrower or any Guarantor Subsidiary.

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

New 2018 Replacement Term Loan” has the meaning assigned to such term in the Fourth Amendment.

New 2018 Replacement Term Lender” has the meaning assigned to such term in the Fourth Amendment.

NFIP” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as revised by the National Flood Insurance Reform Act of 1994, the Flood Insurance Reform Act of 2004 and the Biggert-Waters Flood Insurance Reform Act of 2012, as amended, that mandates the purchase of flood insurance to cover real property improvements located in Special Flood Hazard Areas in participating communities and provides protection to property owners through a federal insurance program.

Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders (or all Lenders of a Class) or all affected (or adversely affected) Lenders (or all affected (or adversely affected) Lenders of a Class) in accordance with the terms of Section 10.5(b) or 10.5(c) and (ii) has been approved by the Required Lenders.

Non-Debt Fund Affiliate” means any Affiliate of Holdingsthe Borrower (other than Holdings, LLC Subsidiary or any of their Subsidiaries), but excluding (i) any Debt Fund Affiliate and (ii) any natural person.

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

Non-Public Information” means information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD.

 

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Non-U.S. Person” means any Person that is organized under the laws of any jurisdiction other than the United States or any state thereof or the District of Columbia.

Note” means a Term Loan Note, a Revolving Loan Note, a Swing Line Note or an Incremental Term Loan Note.

Notice” means a Funding Notice, an Issuance Notice, or a Conversion/Continuation Notice.

Notice Office” means the office of the Administrative Agent set forth on Appendix B hereto, or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

NY Process Agent” has the meaning set forth in Section 10.28.

Obligations” means all obligations (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) of every nature of each Credit Party from time to time owed to any Agent (including any former Agent), any Lender, the Issuing Bank and any Eligible Counterparty under any Credit Document or Secured Swap Contract, and all Cash Management Obligations, in each case, whether for principal, interest (including interest which, but for the filing of a petition in any proceeding under any Debtor Relief Law with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest in such proceeding), reimbursement of amounts drawn under Letters of Credit, payments for early termination of Secured Swap Contracts, fees, expenses, indemnification or otherwise; provided that, notwithstanding the above, the Obligations shall exclude all Excluded Swap Obligations.

Obligee Guarantor” as defined in Section 7.7.

OFAC” means the US Department of Treasury Office of Foreign Assets Control, or any successor thereto.

OFAC Lists” means, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to any of the rules and regulations of OFAC or pursuant to any applicable executive orders, including Executive Order No. 13224, as that list may be amended from time to time.

Organizational Documents” means (i) with respect to any corporation, its certificate or articles of incorporation or organization and its by-laws or memorandum and articles of association (or in the case of a Foreign Subsidiary that is an incorporated company or similar corporate entity, the appropriate equivalent documents); (ii) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement (or in the case of a Foreign Subsidiary that is a limited partnership or similar entity, the appropriate equivalent documents); (iii) with respect to any exempted limited partnership, its certificate of registration and its exempted limited partnership agreement; (iv) with respect to any general partnership, its partnership agreement (or in the case of a Foreign Subsidiary that is a general partnership or similar entity, the appropriate equivalent documents) and (v) with respect to any limited liability company, its articles of organization or certificate of registration and its operating agreement or limited liability company agreement (or in the case of a Foreign Subsidiary that is a limited liability company or similar entity, the appropriate equivalent documents). In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a Governmental Authority, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such Governmental Authority.

 

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

Other Revolving Commitments” means one or more Classes of Revolving Credit Commitments hereunder that result from a Refinancing Amendment.

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

Other Revolving Loans” means one or more Classes of Revolving Loans that result from a Refinancing Amendment.

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.23).

Other Term Loan Commitments” means one or more Classes of Term Loan Commitments hereunder that result from a Refinancing Amendment.

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

Other Term Loans” means one or more Classes of Term Loans that result from a Refinancing Amendment.

Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Effective Rate and (b) with respect to any amount denominated in any Alternative Currency, the rate of interest per annum at which overnight deposits in such currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Administrative Agent in the applicable offshore interbank market for such currency to major banks in such interbank market.

Parallel Liability” means a Credit Party’s undertaking pursuant to 10.27.

Parent” means any Person controlled by the Sponsor and its Controlled Investment Affiliates that, directly or indirectly, controls Holdings and/or LLC Subsidiary.

Participant” as defined in Section 10.6(f).

Participant Register” as defined in Section 10.6(f).

PATRIOT Act” means USA PATRIOT Improvement and Reauthorization Act, Title III of Pub. L. 109-177.

 

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Payment Office” means the office or account of the Administrative Agent set forth on Appendix B hereto, or such other office or account as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

Payoff Cash Collateral” as defined in Section 3.1(i)(iii).

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

Pension Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA, other than a Multiemployer Plan, which is subject to Section 412 of the Code or Section 302 of ERISA and which is sponsored, maintained or contributed to by, or required to be contributed to by, Holdings, anythe Borrower, any of the Restricted Subsidiaries, or any ERISA Affiliate, but excluding any Foreign Pension Plan.

Permitted 2L IPO Prepayment Amount” as defined in Section 5.23.

Permitted Acquisition” means an acquisition by anythe Borrower or any Restricted Subsidiary (other than LLC Subsidiary),, whether by purchase, merger or otherwise, of all or substantially all of the assets of, at least a majority of the Equity Interests of, or all or substantially all of a business line or unit or a division of, any Person (including any Investment that increases anythe Borrower’s direct or indirect equity ownership in any joint venture), that satisfies each of the following conditions:

(i) (a) in the case of a Limited Condition Acquisition, (1) no Default or Event of Default shall exist as of the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into and (2) immediately prior to, and after giving effect thereto, no Event of Default under Section 8.1(a), 8.1(f) or 8.1(g) shall have occurred and be continuing or would result therefrom, and (b) in the case of any other Permitted Acquisition, immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(ii) the aggregate amount of Investments by Credit Parties with respect to all Permitted Acquisitions in (a) assets (other than Equity Interests) that are not (or do not become at the time of such acquisition) directly owned by a Credit Party plus (b) Equity Interests of Persons (other than Persons who are designated as Unrestricted Subsidiaries) that are not Credit Parties and do not become Credit Parties in accordance with Section 5.11, together with Investments made pursuant to Section 6.6(e)(i)(x), shall not exceed (x) $15,000,000 at any time outstanding, plus (y) so long as (I) no Event of Default shall have occurred and be continuing or shall be caused thereby and (II) on a Pro Forma Basis immediately after giving effect to such Permitted Acquisition, the Consolidated Total Net Leverage Ratio shall not exceed 5.25:1.00, as demonstrated by a Pro Forma Compliance Certificate delivered to the Administrative Agent (A) in the case of a Limited Condition Acquisition, on or before the date of the definitive agreement for such Limited Condition Acquisition is signed as of the date of signing and (B) in the case of any other Permitted Acquisition, on or before the consummation of such Permitted Acquisition as of the date of such Permitted Acquisition, the then Available Amount;

(iii) upon giving effect to such acquisition, Holdingsthe Borrower and its Restricted Subsidiaries, including any Subsidiary acquired in such acquisition, shall be in compliance with Section 6.12; and

 

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(iv) such acquisition shall be consensual and shall have been approved by the subject Person’s Board of Directors or the requisite holders of the Equity Interests thereof.

Permitted Encumbrance” means each of the following Liens (but excluding any such Lien imposed pursuant to Section 401(a)(29) or 430(k) of the Code or by any section of ERISA, any such Lien imposed by a Governmental Authority in connection with any Foreign Pension Plan):

(i) Liens for Taxes if the applicable Person is in compliance with Section 5.3 with respect thereto and statutory Liens for Taxes not yet due and payable;

(ii) statutory or common law Liens of landlords, sub-landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens, so long as, in each case, such Liens (a) secure amounts not overdue for a period of more than 30 days, or if more than 30 days overdue, are unfiled (or if filed have been discharged or stayed) and no other action has been taken to enforce such Liens or (b) that are being contested in good faith and by appropriate actions, if reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

(iii) (a) pledges, deposits or Liens in the ordinary course of business in connection with workers’ compensation, payroll taxes, unemployment insurance and other social security legislation and (b) 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, LLC Subsidiary, anythe Borrower or any of the Restricted Subsidiaries;

(iv) pledges or deposits to secure the performance of bids, trade contracts, utilities, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business, so long as (a) any Liens that secure surety bonds attach only to the contracts in respect of which such surety bonds are posted and related assets and, as to any other properties, such Liens are junior to the Liens in favor of the Collateral Agent on the same properties that constitute Collateral under the Collateral Documents, and (b) no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;

(v) covenants, conditions, easements, rights-of-way, building codes, restrictions (including zoning restrictions), encroachments, licenses, protrusions and other similar encumbrances and minor title defects, in each case affecting real property and that do not in the aggregate materially interfere with the ordinary conduct of the business of Holdingsthe Borrower and its Restricted Subsidiaries, taken as a whole, and any exceptions on the Title Policies issued in connection with the Mortgaged Properties;

(vi) Liens (a) 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 (b) 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;

 

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(vii) Liens (a) of a collection bank (including those arising under Section 4-208 of the Uniform Commercial Code) on items in the course of collection, (b) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business, (c) in favor of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institutions general terms and conditions, and (d) that are contractual rights of setoff or rights of pledge relating to purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;

(viii) any interest or title of a lessor, sub-lessor, licensor or sub-licensor under leases, subleases, licenses or sublicenses entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

(ix) leases, licenses, subleases or sublicenses and Liens on the property covered thereby, in each case, granted to others in the ordinary course of business which do not (i) interfere in any material respect with the business of anythe Borrower and its Restricted SubsidiarySubsidiaries, taken as a whole, or (ii) secure any Indebtedness;

(x) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business permitted by this Agreement;

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

(xii) Liens that are contractual rights of set-off or rights of pledge (a) relating to the establishment of depository relations with banks or other deposit-taking financial institutions and not given in connection with the issuance of Indebtedness, (b) relating to pooled deposit or sweep accounts of Holdings, anythe Borrower or any of the Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdings, anythe Borrower or any of the Restricted Subsidiaries or (c) relating to purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;

(xiii) Liens on any cash earnest money deposits made by Holdings, anythe Borrower or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;

(xiv) Liens consisting of an agreement to dispose of any property in an Asset Sale permitted hereunder, to the extent that such Asset Sale would have been permitted on the date of the creation of such Lien;

(xv) ground leases in respect of real property on which Facilities owned or leased by anythe Borrower or any of the Restricted Subsidiaries are located;

(xvi) (a) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies in all material respects, and (b) 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 Holdingsthe Borrower and its Restricted Subsidiaries, taken as a whole;

 

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(xvii) Liens arising from precautionary Uniform Commercial Code financing statement or similar filings;

(xviii) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(xix) Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;

(xx) deposits of cash with the owner or lessor of premises leased and operated by the Borrower or any Restricted Subsidiary to secure the performance of the Borrower’s or such Restricted Subsidiary’s obligations under the terms of the lease for such premises;

(xxi) 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;

(xxii) Liens on property subject to any sale-leaseback transaction permitted hereunder and general intangibles related thereto;

(xxiii) Liens arising by operation of law in the United States under Article 2 of the UCC in favor of a reclaiming seller of goods or buyer of goods; and

(xxiv) with respect to any Foreign Credit Party or other Restricted Subsidiary that is a Non-U.S. Person (and assets thereof), other Liens (a) arising mandatorily by Law, (b) substantially equivalent to any Lien or other restriction described in any of the foregoing clauses (i) through (xxiii) or (c) customary in the jurisdiction of such Person and not securing Indebtedness for borrowed money.

Permitted First Priority Refinancing Debt” means secured Indebtedness incurred by the BorrowersBorrower ; provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and is not secured by any property or assets of Holdings, anythe Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and (iii) such Indebtedness is not at any time guaranteed by any Person other than a Guarantor (and any guaranty by Holdings or LLC Subsidiary shall be limited in recourse on the same basis as their Guaranty hereunder).

Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.

Permitted Obligations” means each of the following:

(i) Indebtedness that may be deemed to exist pursuant to any guaranties, performance, completion, bid, surety, statutory, appeal or similar obligations (including letters of credit) incurred in the ordinary course of business or 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;

 

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(ii) Cash Management Obligations and other Indebtedness of Holdings, anythe Borrower or any of its Restricted Subsidiaries in respect of netting services, overdraft protections and otherwise in connection with deposit, securities, and commodities accounts arising in the ordinary course of business;

(iii) Cash Management Obligations and other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, such Indebtedness is extinguished within five Business Days after its incurrence;

(iv) Indebtedness consisting of (a) unpaid insurance premiums (not in excess of one year’s premiums) owing to insurance companies and insurance brokers incurred in connection with the financing of insurance premiums or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

(v) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Restricted Subsidiaries;

(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;

(vii) Indebtedness arising under guarantees entered into pursuant to Section 2:403 of the Dutch Civil Code (Burgerlijk Wetboek) in respect of a Credit Party incorporated in The Netherlands and any residual liability with respect to such guarantees arising under Section 2:404 of the Dutch Civil Code or any fiscal unity (fiscal eenheid) entered into; and

(viii) in respect of any Non-U.S. Person, (a) Indebtedness substantially equivalent to any Indebtedness described in any of the foregoing clauses (i) through (vii) or (b) arising as a matter of law in the jurisdiction of such Person.

Permitted Refinancing” as defined in Section 6.1(q).

Permitted Second Priority Refinancing Debt” means any secured Indebtedness incurred by the BorrowersBorrower ; 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 First Priority Refinancing Debt and is not secured by any property or assets of Holdings, anythe Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness is secured by the Collateral on a pari passu (or junior priority) basis to the Liens securing the Second Lien Obligations, (iii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and (iviii ) such Indebtedness is not at any time guaranteed by any Person other than a Guarantor (and any guaranty by Holdings or LLC Subsidiary shall be limited in recourse on the same basis as their Guaranty hereunder).

Permitted Unsecured Refinancing Debt” means any unsecured Indebtedness incurred by the BorrowersBorrower ; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and (ii) such Indebtedness in not at any time guaranteed by any Person other than a Guarantor (and any guaranty by Holdings or LLC Subsidiary shall be limited in recourse on the same basis as their Guaranty hereunder).

 

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

Platform” as defined in Section 10.1(d)(i).

Pledge and Security Agreement” means the First Lien Pledge and Security Agreement substantially in the form of Exhibit H.

Pledged Intercompany Indebtedness” means all loans made by Holdings or LLC Subsidiary to a Restricted Subsidiary in accordance with the terms of this Agreement.

Pledged Lux Holdco Equity Interests” means the Equity Interests of Lux Holdco, and the certificates, if any, representing such Equity Interests, and any interest of any holder of such Equity Interests in the entries on the books of Lux Holdco of such Equity Interests or on the books of any securities intermediary pertaining to such Equity Interests, and all proceeds thereof.

Pledged U.S. Borrower Equity Interests” means the Equity Interests of U.S. Borrower, and the certificates, if any, representing such Equity Interests, and any interest of any holder of such Equity Interests in the entries on the books of U.S. Borrower of such Equity Interests or on the books of any securities intermediary pertaining to such Equity Interests, and all proceeds thereof.

Prime 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 publish for any reason such rate of interest, “Prime Rate” means the prime lending rate as set forth on the Bloomberg page PRIMBB Index (or successor page) for such day (or such other service as reasonably determined in good faith by the Administrative Agent from time to time for purposes of providing quotations of prime lending interest rates). The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.

Pro Forma Basis” as determined in accordance with Section 1.7.

Pro Forma Compliance Certificate” means a Pro Forma Compliance Certificate substantially in the form of Exhibit C-2.

Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Term Loan of any Lender, the percentage obtained by dividing (a) the Term Loan Exposure of such Lender by (b) the aggregate Term Loan Exposure of all of the Lenders; (ii) with respect to all payments, computations and other matters relating to the Revolving Credit Commitment or Revolving Loans of any Lender or any Letters of Credit issued or participations purchased therein by any Lender or any participations in any Swing Line Loans purchased by any Lender, the percentage obtained by dividing (a) the Revolving Credit Exposure of such Lender by (b) the aggregate Revolving Credit Exposure of all of the Lenders; and (iii) with respect to all payments, computations, and other matters relating to Incremental Term Loan Commitments or Incremental Term Loans of a particular Series, the percentage obtained by dividing (a) the Incremental Term Loan Exposure of such Lender with respect to that Series by (b) the aggregate Incremental Term Loan Exposure of all of the Lenders with respect to that Series. For all other purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (A) an amount equal to the sum of the Term Loan Exposure, the Revolving Credit Exposure and the Incremental Term Loan Exposure of such Lender, by (B) an amount equal to the sum of the aggregate Term Loan Exposure, the aggregate Revolving Credit Exposure and the aggregate Incremental Term Loan Exposure of all of the Lenders.

 

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Projections” means the projections of Holdings and its Restricted Subsidiaries on a quarterly basis for the first eight Fiscal Quarters ending after the Closing Date and on annual basis thereafter to and including 2022.

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.

Public Lender” means a Lender that does not wish to receive material Non-Public Information with respect to Holdings, anythe Borrower or the Restricted Subsidiaries or any of their Securities.

Purchase Money Indebtedness” means Indebtedness of anythe Borrower or any other Restricted Subsidiaries incurred for the purpose of financing all or any part of the purchase price or cost of acquisition, repair, construction or improvement of property or assets used or useful in the business of anythe Borrower or any other Restricted Subsidiaries.

Qualified Borrower IPO” means the issuance by the U.S. Borrower of its common equity Securities in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the Securities and Exchange Commission in accordance with the Securities Act (whether alone or in connection with a secondary public offering).

Qualified Borrower IPO/Reorganization Amendment” means an amendment to the Credit Agreement to be entered into by the Administrative Agent and the U.S. Borrower only, which amendment will effectuate the following and be effective upon or after the consummation of the Qualified Borrower IPO:

(a) amend the definition of Change of Control (i) to reference the Qualified Borrower IPO and (ii) to reflect the ownership by the U.S. Borrower of Corsair Components, Lux Holdco and the other Restricted Subsidiaries after giving effect to the Qualified Borrower IPO;

(b) amend Section 4 (Representations and Warranties) to apply only to the U.S. Borrower and its Restricted Subsidiaries;

(c) amend (i) Section 5 (Affirmative Covenants) to apply only to the U.S. Borrower and its Restricted Subsidiaries, including Section 5.1 (Financial Statements and Other Reports and Notices) and (ii) Section 5.11 (Subsidiaries) to exclude Subsidiaries formed during the intermediate steps of the Qualified Borrower IPO/Reorganization Transactions;

(d) amend (i) Section 6 (Negative Covenants) to apply only to the U.S. Borrower and its Restricted Subsidiaries, (ii) Section 6.4 (Restricted Payments) to permit the U.S. Borrower to pay dividends within 60 days after the date of their declaration (if such dividends could have been paid on such date in compliance with Section 6.4), (iii) Sections 6.8 (Fundamental Changes), 6.9 (Asset Sales) and 6.11 (Transactions with Affiliates) to expressly permit the Qualified Borrower IPO/Reorganization Transactions and (iv) Section 6.13 (Permitted Activities of Holdings, LLC Subsidiary and Lux Holdco) to exclude Holdings and LLC Subsidiary;

 

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(e) amend Section 7 (Guaranty) to exclude Holdings, LLC Subsidiary and each other Guarantor Subsidiary released from its Guaranty as described in the definition of Qualified Borrower IPO/Reorganization Transactions;

(f) amend Section 8 (Events of Default) to exclude as Events of Default any termination of any Guaranty and/or Collateral Document described in the definition of Qualified Borrower IPO/Reorganization Transactions; and

(g) amend the Schedules to this Agreement and the other Credit Documents to reflect the U.S. Borrower and its Restricted Subsidiaries after giving effect to the Qualified Borrower IPO.

Qualified Borrower IPO/Reorganization Transactions” means the consummation of the following transactions after the Fourth Amendment Effective Date in connection with the Qualified Borrower IPO:

(a) the release of each of Holdings and LLC Subsidiary as a “Guarantor” under the Credit Agreement and the other Credit Documents, and the discharge and release of each of Holdings and LLC Subsidiary from all obligations with respect thereto;

(b) the termination of (i) the Limited Recourse Pledge and Security Agreement, among Holdings, LLC Subsidiary and the Collateral Agent and (ii) the First Ranking Share Pledge Agreement, among Holdings, LLC Subsidiary, Cortland Capital Market Services LLC and Lux Holdco;

(c) the dissolution of LLC Subsidiary;

(d) the consummation of the Qualified Borrower IPO;

(e) transfers such that the U.S. Borrower shall (i) directly or indirectly own and control 100% on a fully diluted basis all of the Equity Interests of Corsair Components, Inc. and Lux Holdco and (ii) directly or indirectly own and control 100% on a fully diluted basis all of the Equity Interests of each other Restricted Subsidiary;

(f) the consummation of all other transactions in respect of changes to the organizational structure and capital structure of Holdings, LLC Subsidiary, the Borrower, the Released Borrowers, and their other Subsidiaries, in each case, as in effect on the Fourth Amendment Effective Date (as set forth on Schedule III to the Fourth Amendment), such that immediately after giving effect to such transactions and the other Qualified Borrower IPO/Reorganization Transactions, the organizational structure and capital structure of the U.S. Borrower and its Subsidiaries, in each case, shall be substantially as set forth on Schedule IV to the Fourth Amendment; and

(g) in the case of any Subsidiary of the U.S. Borrower that is an Excluded Tax Subsidiary upon or after giving effect to the consummation of the Qualified Borrower IPO, (i) the release of such Subsidiary as a Credit Party under the Credit Agreement and any of the other Credit Documents, and the discharge and release of such Subsidiary from all obligations with respect thereto, (ii) the termination of all obligations of, and Liens granted by, such Subsidiary under any Collateral Document to which such Subsidiary is a party and (iii) the release of all Liens on Equity Interests thereof other than Liens described in Section 5.11(e).

 

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Qualified Borrower Jurisdictions” means and includes the United States, Hong Kong and Luxembourg, in each case, including any states, provinces or other similar local units therein. Furthermore, from time to time after the Closing Date, the Borrowers may request (by written notice to the Administrative Agent) that one or more additional jurisdictions be added to the list of Qualified Borrower Jurisdictions. In such event, such jurisdictions shall be added to (and thereafter form part of) the list of Qualified Borrower Jurisdictions, so long as, in each case, the respective jurisdiction to be added is a jurisdiction reasonably satisfactory to the Administrative Agent.

Qualified Cash” means all (i) unrestricted cash owned by Holdings, anythe Borrower or any Restricted Subsidiary, as reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP but without giving pro forma effect to the receipt of the proceeds of any Indebtedness that is incurred on such date and the use thereof for the application to the payment of Indebtedness is not prohibited by law or any contract to which anythe Borrower or any Restricted Subsidiary is a party and (ii) cash restricted in favor of the Obligations (which may also include cash securing other Indebtedness permitted hereunder that is secured by a Lien permitted hereunder on the Collateral along with the Obligations).

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

Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

Qualified IPO” means the issuance by Holdings of its Securities in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the Securities and Exchange Commission in accordance with the Securities Act (whether alone or in connection with a secondary public offering).

Qualified Jurisdictions” means and includes the United States, the Cayman Islands, Hong Kong, the Netherlands and Luxembourg, in each case, including any states, provinces or other similar local units therein. Furthermore, from time to time after the Closing Date, the BorrowersBorrower may request (by written notice to the Administrative Agent) that one or more additional jurisdictions be added to the list of Qualified Jurisdictions. In such event, such jurisdictions shall be added to (and thereafter form part of) the list of Qualified Jurisdictions, so long as, in each case, the respective jurisdiction to be added is a jurisdiction reasonably satisfactory to the Administrative Agent (it being agreed that (a) such determination shall be based upon, without limitation, (i) the amount and enforceability of the Guaranty that may be entered into by such Person organized in such jurisdiction, (ii) the security interests (and enforceability thereof) that may be granted with respect to assets (or various classes of assets) located in such jurisdiction and (iii) any political risk associated with such jurisdiction and (b) the United Kingdom and Germany are reasonably satisfactory to the Administrative Agent).

Quotation Day” means, with respect to any Interest Period, the day two Business Days prior to the first day of such Interest Period.

 

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Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by Holdings, anythe Borrower or any Restricted Subsidiaries in any real property.

Recipient” means (a) the Administrative Agent, (b) the Collateral Agent, (c) any Lender, (d) any Issuing Bank and (e) the Swing Line Lender, as applicable.

Refinanced Debt” as defined in the definition of “Credit Agreement Refinancing Indebtedness”.

Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the BorrowersBorrower executed by each of (a) the BorrowersBorrower and the Guarantors, (b) the Administrative Agent, and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.26.

Refunded Swing Line Loans” as defined in Section 2.3(g).

Register” as defined in Section 10.6(d).

Regulation” as defined in Section 7.15.

Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.

Regulation FD” means Regulation FD as promulgated by the Securities and Exchange Commission under the Securities Act and Exchange Act as in effect from time to time.

Reimbursement Date” as defined in Section 2.4(d).

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, advisors, trustees, administrators and managers of such Person and of such Person’s Affiliates.

Related Transactions” means the Closing Date Acquisition and the other transactions consummated (or to be consummated) pursuant to the Closing Date Acquisition Documents and the payment of the Transaction Costs.

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

Released Borrower” has the meaning assigned to such term in the Sixth Amendment.

Released Credit Party” means each Released Borrower and each Released Guarantor.

Released Guarantor” has the meaning assigned to such term in the Sixth Amendment.

Remaining Obligations” means, as of any date of determination, the Obligations that as of such date of determination are (i) Obligations under the Credit Documents that survive termination of the Credit Documents, but as of such date of determination are not due and payable and for which no claims have been made, (ii) Obligations in respect of Secured Swap Contracts and (iii) Cash Management Obligations.

 

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Removal Effective Date” as defined in Section 9.6(b).

Repricing Event” as defined in Section 2.11(h).

Required Lenders” means one or more Lenders having or holding Term Loan Exposure, Incremental Term Loan Exposure and/or Revolving Credit Exposure and representing more than 50% of the sum of (i) the aggregate Term Loan Exposure of all of the Lenders, (ii) the aggregate Revolving Credit Exposure of all of the Lenders, and (iii) the aggregate Incremental Term Loan Exposure of all Lenders; provided, (a) the Term Loan Exposure, Incremental Term Loan Exposure and/or Revolving Credit Exposure, as applicable, of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; (b) any determination of Required Lenders with respect to Affiliated Lenders shall be subject to Section 10.6(c); (c) at any time that there are two or more Lenders party to this Agreement (other than Affiliated Lenders), the term “Required Lenders” must include at least two Lenders (Lenders that are Affiliates or Approved Funds of each other shall be deemed to be a single Lender for purposes of this clause (c)) neither of which are Affiliated Lenders; and (d) as of any date of determination, and notwithstanding anything herein to the contrary, in determining whether the Required Lenders have consented to any action pursuant to Section 10.5, the amount of Term Loan Exposure, Incremental Term Loan Exposure and Revolving Credit Exposure then held by all Debt Fund Affiliates shall not exceed the lesser of (x) the actual aggregate amount of Term Loan Exposure, Incremental Term Loan Exposure and Revolving Credit Exposure then held by all Debt Fund Affiliates, and (y) 49.9% of the aggregate amount of the aggregate Term Loan Exposure, Incremental Term Loan Exposure and Revolving Credit Exposure then held by all of the Lenders.

Required Revolving Lenders” means one or more Lenders having or holding Revolving Credit Exposure and representing more than 50% of the aggregate Revolving Credit Exposure of all of the Lenders; provided, (i) the Revolving Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time and (ii) at any time that there are two or more Lenders party to this Agreement holding Revolving Credit Exposure, the term “Required Lenders” must include at least two Lenders holding Revolving Credit Exposure (Lenders that are Affiliates or Approved Funds of each other shall be deemed to be a single Lender for purposes of this clause (ii)).

Required Prepayment Date” as defined in Section 2.15(d).

Resignation Effective Date” as defined in Section 9.6(a).

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of Holdings, anythe Borrower or any of the Restricted Subsidiaries, 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 anythe Borrower’s or any Restricted Subsidiary’s stockholders, partners or members (or the equivalent Persons thereof).

Restricted Subsidiary” means (i) LLC Subsidiary and (ii) each Subsidiary of Holdingsthe Borrower that is not an Unrestricted Subsidiary.

Retained Declined Proceeds” as defined in Section 2.15(d).

Returns” means, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from an Asset Sale or otherwise) and other amounts received or realized in respect of such Investment, in each case on an after-tax basis, including any amount received by Holdingsthe Borrower or any Restricted Subsidiary upon (i) the

 

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redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, (ii) the merger of an Unrestricted Subsidiary into athe Borrower or a Restricted Subsidiary (so long as suchthe Borrower or such Restricted Subsidiary is the surviving entity), or (iii) the transfer of assets by an Unrestricted Subsidiary to athe Borrower or a Restricted Subsidiary (up to the fair market value thereof as determined in good faith by suchthe Borrower).

Revolving Credit Commitment” means the commitment of a Lender to make or otherwise fund any Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder and “Revolving Credit Commitments” means such commitments of all of the Lenders in the aggregate. The amount of each Lender’s Revolving Credit Commitment, if any, is set forth on Appendix A-2 or in the applicable Assignment and Assumption Agreement or Joinder Agreement, if applicable subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Revolving Credit Commitments as of the Closing Date is $50,000,000.

Revolving Credit Commitment Period” means the period from the Closing Date to but excluding the Revolving Credit Commitment Termination Date.

Revolving Credit Commitment Termination Date” means the earliest to occur of (i) other than with respect to Extended Revolving Credit Commitments, August 28, 2022, (ii) the date the Revolving Credit Commitments are permanently reduced to zero pursuant to Section 2.13(b) or 2.14, (iii) the date of the termination of the Revolving Credit Commitments pursuant to Section 8.2, and (iv) solely with respect to any Extended Revolving Credit Commitments, the applicable Extended Maturity Date.

Revolving Credit Exposure” means, with respect to any Lender as of any date of determination, (i) prior to the termination of the Revolving Credit Commitments, such Lender’s Revolving Credit Commitment; and (ii) after the termination of the Revolving Credit Commitments, the sum, without duplication, of (a) the aggregate outstanding principal Dollar Amount of the Revolving Loans of such Lender, (b) in the case of the Issuing Bank, the aggregate Dollar Amount of Letter of Credit Obligations in respect of all Letters of Credit issued by such Lender (net of any participations by the Lenders in such Letters of Credit), (c) the aggregate Dollar Amount of all participations by such Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (d) in the case of the Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any participations therein by the Lenders), and (e) the aggregate amount of all participations therein by such Lender in any outstanding Swing Line Loans.

Revolving Credit Limit” means, as of any date of determination, the aggregate amount of the Revolving Credit Commitments as of such date.

Revolving Lender” means, any Lender that has a Revolving Credit Commitment or had made a Revolving Loan.

Revolving Loan” means a Loan made by a Lender to the BorrowersBorrower pursuant to Section 2.2(a), and unless the context shall otherwise require, the term “Revolving Loan” shall include any Incremental Revolving Loan incurred pursuant to section 2.25 and any Other Revolving Loan incurred pursuant to Section 2.26.

Revolving Loan Note” means a promissory note in the form of Exhibit B-2 or otherwise acceptable to the Administrative Agent.

S&P” means S&P Global Inc., and any successor thereto.

 

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Sanctioned Country” means, at any time, a country or territory which is, or whose government is, the subject or target of any Sanctions broadly restricting or prohibiting dealings with such country, territory or government.

Sanctioned Person” means, at any time, any Person with whom dealings are restricted or prohibited under Sanctions, including (i) any Person listed in any Sanctions-related list of designated Persons maintained by the United States (including by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or the U.S. Department of Commerce), the United Nations Security Council, the European Union or any of its member states, Her Majesty’s Treasury (including the Consolidated List of Financial Sanctions Targets and the Investments Ban List) or Switzerland, (ii) any Person organized under the laws or a resident of, or any Governmental Authority or governmental instrumentality of, a Sanctioned Country or (iii) any Person directly or indirectly owned by, controlled by, or acting for the benefit or on behalf of, any Person described in clauses (i) or (ii) hereof.

Sanctions” means (a) economic or financial sanctions or trade embargoes or restrictive measures enacted, imposed, administered or enforced from time to time by (i) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or the U.S. Department of Commerce; (ii) the United Nations Security Council; (iii) the European Union or any of its member states; (iv) the United Kingdom of Great Britain and Northern Ireland; (v) Her Majesty’s Treasury; and (vi) Switzerland; or (b) any corresponding requirements of Law of jurisdictions in which Holdingsthe Borrower or any Restricted Subsidiary operate, in which the proceeds of any Loan or Letter of Credit will be used or from which repayment of the Obligations is derived.

Scheduled Unavailability Date” as defined in Section 2.18(a)(ii).

Screen Rate” means, in respect of the Eurodollar Base Rate for any Interest Period, a rate per annum equal to (i) with respect to any Eurodollar Loan denominated in Dollars, the London interbank market rate offered to major London banks for deposits in Dollars with a term equivalent to such Interest Period as displayed on the applicable Bloomberg LIBOR screen (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market) and (ii) with respect to any Eurodollar Loan denominated in any Alternative Currency, the London interbank market rate offered to major London banks for deposits in such Alternative Currency with a term equivalent to such Interest Period as displayed on the applicable Bloomberg screen (or such other page as may replace such page on such service for the purpose of displaying the rates at which deposits in such Alternative Currency are offered by leading banks in the London interbank deposit market); provided that if any Screen Rate described in preceding clauses (i) or (ii) shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement. If no such Screen Rate shall be available for a particular Interest Period but Screen Rates shall be available for maturities both longer and shorter than such Interest Period, than the Screen Rate for such Interest Period shall be the Interpolated Screen Rate; provided that if any Interpolated Screen Rate shall be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement; provided, further, that if there shall at any time no longer exist an applicable Bloomberg LIBOR screen, “Eurodollar Loan” shall mean, with respect to each day during each Interest Period pertaining to Eurodollar Loans, the rate per annum equal to the rate at which major London banks are offered deposits in the applicable currency at approximately 11:00 a.m., London, England time, on the relevant Quotation Day in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of such Eurodollar Loan to be outstanding during such Interest Period. If the Screen Rate cannot reasonably be determined by the Administrative Agent in accordance with the foregoing sentences, then the Administrative Agent may utilize a comparable or successor rate (as approved by the Administrative Agent and the BorrowersBorrower ) as the Screen Rate, in accordance with the provisions set forth in Section 2.18(a).

 

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SCUF Acquisition Agreement” means the Agreement and Plan of Merger, dated as of November 6, 2019, among Corsair Memory, Inc., as buyer, Sonic Merger Company, a Delaware limited liability company and wholly owned subsidiary of Corsair Memory, Inc., SCUF Holdings, Inc., and H.I.G. Growth – Scuf, LLC, as representative, and the U.S. Borrower (together with all exhibits, schedules and disclosure letters thereto), as amended by Amendment No. 1 thereto, dated as of December 9, 2019.

Second Lien Additional Indebtedness” means, collectively, any Second Lien Incremental Term Loans and any Second Lien Other Term Loans.

Second Lien Administrative Agent” means Macquarie Capital Funding LLC, in its capacity as administrative agent and collateral agent under the Second Lien Credit Documents, or any successor administrative agent and collateral agent under the Second Lien Credit Agreement.

Second Lien Credit Agreement” means that certain Second Lien Credit Agreement, dated as of the date hereofAugust 28, 2017, among the Borrower, the Released Borrowers, the Guarantors, the Released Guarantors, the lenders party thereto from time to time and the Second Lien Administrative Agent, as the same may be amended, restated, modified, supplemented, extended, increased, renewed, refunded, replaced, restructured or refinanced from time to time in one or more agreements (in each case with the same or new lenders, investors or agents), including any agreement extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof with new lenders or a different agent, in each case as and to the extent permitted by this Agreement and the Intercreditor Agreement.which Second Lien Credit Agreement has been terminated, and all obligations thereunder repaid in full, as of September 4, 2020.

Second Lien Credit Agreement Refinancing Indebtedness” means “Credit Agreement Refinancing Indebtedness” (or any comparable term) as defined in the Second Lien Credit Agreement, as the same may be subsequently amended or restated in accordance with this Agreement and the terms of the Intercreditor Agreement.

Second Lien Credit Documents” means the Second Lien Credit Agreement and all security agreements, guarantees, pledge agreements, notes and other agreements or instruments executed in connection therewith, including all “Credit Documents” (or any comparable term) (as defined in the Second Lien Credit Agreement).

Second Lien Creditors” shall have the meaning assigned to that term in the Intercreditor Agreement.

Second Lien Incremental Term Loans” means the “Incremental Term Loans” (or any comparable term) as defined in the Second Lien Credit Agreement.

Second Lien Obligations” means the “Obligations” (or any comparable term) as defined in the Second Lien Credit Agreement.

Second Lien Other Term Loans” means the “Other Term Loans” (or any comparable term) as defined in the Second Lien Credit Agreement.

Second Lien Term Facility” means the second lien term loan facility under the Second Lien Credit Agreement.

Second Lien Term Facility Indebtedness” means the Second Lien Term Loans, any Second Lien Additional Indebtedness, and any Second Lien Credit Agreement Refinancing Indebtedness.

 

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Second Lien Term Loans” means the “Term Loans” (or any comparable term) as defined in the Second Lien Credit Agreement.

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

Secured Swap Contract” means any Swap Contract permitted under Section 6.1 that is entered into by and between anythe Borrower or any Guarantor Subsidiary and any Eligible Counterparty, to the extent designated by suchthe Borrower and such Eligible Counterparty as a “Secured Swap Contract” in writing to the Administrative Agent. The designation of any Secured Swap Contract shall not create in favor of such Eligible Counterparty any rights in connection with the management or release of Collateral or of the obligations of any Guarantor under the Credit Documents.

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

Securities Act” means the Securities Act of 1933, and any successor statute.

Securities and Exchange Commission” means the US Securities and Exchange Commission, or any successor thereto.

Securitization” means a public or private offering by a Lender or any of its Affiliates or their respective successors and assigns, of Securities which represent an interest in, or which are collateralized, in whole or in part, by the Loans.

Securitization Party” means any Person that is a trustee, collateral manager, servicer, backup servicer, noteholder or other security holder, secured party, counterparty to a Securitization related Swap Contract, or other participant in a Securitization.

Seller 1” as defined in the recitals hereto.

Series” as defined in Section 2.25(e).

Shared Fixed Incremental Amount” has the meaning set forth in the definition of “Maximum Incremental Facilities Amount”.

Sixth Amendment” means Amendment No. 6 to the First Lien Credit and Guaranty Agreement, dated as of September 25, 2020, by and among Holdings, the Borrower, the Released Borrowers, certain Subsidiaries of Holdings party thereto, as Guarantors, the Administrative Agent and the Collateral Agent.

Sixth Amendment Effective Date” has the meaning assigned to such term in the Sixth Amendment.

Solvency Certificate” means a certificate substantially in the form of Exhibit L or otherwise acceptable to the Administrative Agent.

 

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Solvent” means, with respect to any Person on any date of determination, that on such date (i) the sum of the debt (including contingent and subordinated liabilities) of such Person and its Subsidiaries, taken as a whole, does not exceed either the fair value or the present fair saleable value of the assets of such Person and its Subsidiaries, taken as a whole; (ii) such person and its subsidiaries, taken as a whole, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital; and (iii) such Person and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent and subordinated liabilities) beyond their ability to pay such debt as they mature and become due in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

SPC” as defined in Section 10.6(h).

Special Flood Hazard Area” means an area that FEMA’s current flood maps indicate has at least a one percent (1%) chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year.

Specified Notice” as defined in the definition of “Interest Period”.

Specified Representations” means the representations and warranties in Sections 4.1(a), 4.1(b) (solely as to due authorization, execution, delivery and performance of the Credit Documents), 4.3 (with respect to Foreign Credit Parties, only to the extent that such concept is applicable thereto), 4.4(a) (solely as to the entry into and performance of the Credit Documents, the provision of any Guaranty, the granting of Liens on the Collateral, and the creation, validity and perfection of Liens under the Collateral Documents), 4.6, 4.16, 4.17, 4.21, 4.22(b) (solely as to compliance with the Patriot Act), Sections 4.22(b) and 4.22(c) (solely as to the use of proceeds not violating OFAC, FCPA and other AML Laws, Anti-Corruption Laws, Anti-Terrorism Laws and applicable Sanctions).

Sponsor” means EagleTree Capital, LP.

Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether members of the Board of Directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of Holdings. Notwithstanding anything to the contrary contained herein, LLC Subsidiary shall be treated as and deemed a Subsidiary of Holdings for all purposes of the Credit Documents; provided, however, so long as LLC Subsidiary is in compliance with the applicable provisions of Section 6.13, the financial statements delivered hereunder do not need to expressly include the results of operations or assets or liabilities of LLC Subsidiary (although if any expenses, charges, losses, gains or income of LLC Subsidiary are included in, or excluded from, the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA, such amounts shall be separately identified either in a footnote to such financial statements or in the applicable Compliance Certificate).the Borrower.

Successor Eurodollar Rate” as defined in Section 2.18(a).

 

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

Swap Contract” means (i) 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 (ii) 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, (i) 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 (ii) for any date prior to the date referenced in clause (i), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

Swing Line Lender” means Macquarie Capital Funding LLC in its capacity as the Swing Line Lender hereunder, together with its permitted successors and assigns in such capacity.

Swing Line Loan” means a Loan made by the Swing Line Lender to the BorrowersBorrower pursuant to Section 2.3.

Swing Line Loan Outstandings” means, at any time of calculation, then existing aggregate outstanding principal amount of Swing Line Loans.

Swing Line Note” means a promissory note in the form of Exhibit B-3 or otherwise acceptable to the Administrative Agent.

 

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Swing Line Sub-limit” means, as of any date of determination, the lower of the following amounts: (i) $5,000,000, and (ii) the aggregate amount of the Revolving Credit Commitments as of such date minus the Total Utilization of Revolving Credit Commitments as of such date.

Syndication Agents” means, collectively, BNP Paribas Securities Corp. and Fifth Third Bank.

Syndication Amendment” as defined in Section 5.17.

Syndication Date” as defined in Section 5.17.

Targets” means, collectively, Corsair Components, Inc., a Delaware corporation, and Corsair Components Coöperatief U.A., a Dutch cooperative.

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

Term Loan” means the initial term loan made by the Lenders on the Closing Date to the Borrower and the Released Borrowers pursuant to Section 2.1(a), the 2018 Replacement Term Loans made by the 2018 Replacement Term Lenders on the Fourth Amendment Effective Date and, unless the context shall otherwise require, Incremental Term Loans incurred pursuant to Section 2.25, Extended Term Loans incurred pursuant to Section 2.24 and Other Term Loans incurred pursuant to Section 2.26.

Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Term Loan and “Term Loan Commitments” means such commitments of all of the Lenders in the aggregate. The amount of each Lender’s Term Loan Commitment, if any, is set forth on Appendix A-1 or in the applicable Assignment and Assumption Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Term Loan Commitments as of (i) the Closing Date is $235,000,000, (ii) the Fourth Amendment Effective Date is $327,125,000, and (iii) the Fifth Amendment Effective Date is $115,000,000.

Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Term Loans of such Lender; provided, at any time prior to the making of the Term Loans, the Term Loan Exposure of any Lender shall be equal to such Lender’s Term Loan Commitment.

Term Loan Lender” means any Lender that has a Term Loan Commitment or that holds a Term Loan.

Term Loan Maturity Date” means the earlier of (i) other than with respect to Extended Term Loans, August 28, 2024, (ii) the date that all Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise, (iii) with respect to any Extended Term Loans, the Extended Maturity Date applicable to such Extended Term Loans and (iv) with respect to any Other Term Loans, the maturity date applicable to such Other Term Loans.

Term Loan Note” means a promissory note in the form of Exhibit B-1.

Test Period” means the most recently ended four Fiscal Quarter period for which financial statements have been (or are required to be) delivered to the Administrative Agent pursuant to Section 5.1(a) or 5.1(b), as applicable.

 

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Title Policy” means, with respect to any Mortgaged Property, an ALTA mortgagee title insurance policy or unconditional commitment therefor issued by one or more title companies reasonably satisfactory to the Collateral Agent with respect to such Mortgaged Property, in an amount not less than the fair market value of such Mortgaged Property, in form and substance reasonably satisfactory to the Collateral Agent.

Total Utilization of Revolving Credit Commitments” means, as at any date of determination, the sum of (i) the aggregate principal Dollar Amount of all outstanding Revolving Loans (other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing the Issuing Bank for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Obligations.

Trade Date” as defined in Section 10.6(l).

Transaction Costs” means the fees, costs and expenses incurred by Holdings, anythe Borrower, the Released Borrowers and any Restricted Subsidiary in connection with the consummation of the transactions to occur on the Closing Date contemplated by the Credit Documents and the Closing Date Acquisition Documents.

Transformative Acquisition” means any Permitted Acquisition or other similar Investment by anythe Borrower or any Restricted Subsidiary that is not permitted by the terms of this Agreement immediately prior to the consummation of such Permitted Acquisition or similar Investment.

Type of Loan” means (i) with respect to Term Loans, Incremental Term Loans or Revolving Loans, a Base Rate Loan or a Eurodollar Loan, and (ii) with respect to Swing Line Loans, a Base Rate Loan.

UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, if by reason of mandatory provisions of Law, the perfection, the effect of perfection or non-perfection or the priority of the security interests of the Collateral Agent in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, the term “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.

Unrestricted Subsidiary” means a direct or indirect Subsidiary of Holdingsthe Borrower designated as an Unrestricted Subsidiary pursuant to Section 5.15; provided, in no event may any Borrower, LLC Subsidiary or Lux Holdco be designated as an Unrestricted Subsidiary. As of the Closing. As of the Sixth Amendment Effective Date, there are no Unrestricted Subsidiaries.

U.S. Borrower” as defined in the preamble hereto.

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

U.S. Tax Compliance Certificate” has the meaning assigned to such term in paragraph (ii)(B)(iii) of Section 2.20(g).

 

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Waivable Mandatory Prepayment” as defined in Section 2.15(d).

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.

Weighted Average Yield” means, with respect to any Loan on any date of determination, the weighted average yield to maturity (as determined in good faith by the Administrative Agent), in each case, based on the interest rate applicable to such Loan on such date (including any interest rate floor and margin) and giving effect to all upfront or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four-year life to maturity or, if the actual maturity date falls earlier than four years, the lesser number of years) payable with respect to such Loan (but excluding such upfront or similar fees to the extent they constitute commitment, arrangement or similar fees that are not distributed to Lenders generally).

Withholding Agent” means anythe Borrower and the Administrative Agent.

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

1.2 Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Holdingsthe Borrower to the Lenders pursuant to Section 5.1(a) and 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(d), if applicable). If at any time any change in GAAP would affect the computation of any financial ratio or financial requirement set forth in any Credit Document, and either the BorrowersBorrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the BorrowersBorrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the BorrowersBorrower shall provide to the Administrative Agent financial statements and other documents required under this Agreement which include a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements.

1.3 Interpretation, Etc. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as

 

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from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth in any Credit Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Appendices, Exhibits and Schedules shall be construed to refer to Sections of, and Appendices, Exhibits and Schedules to, this Agreement, (e) any reference to any Law herein shall, unless otherwise specified, refer to such Law as amended, modified or supplemented from time to time, (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Securities, accounts and contract rights and (g) any reference to EagleTree-Carbide HoldingsCorsair Group (Cayman), LP, whether acting in its capacity as a Released Guarantor or otherwise, shall be construed as a reference to the partnership acting at all times through its general partner, EagleTree-Carbide (GP), LLC.

1.4 Certifications. Any certificate or other writing required hereunder or under any other Credit Document to be certified by any officer or other authorized representative of any Person (or of the general partner of any Person that is a partnership) shall be deemed to be executed and delivered by the individual holding such office solely in such individual’s capacity as an officer or other authorized representative of such Person (or of such general partner) and not in such officer’s or other authorized representative’s individual capacity.

1.5 Timing of Performance. Subject to Section 2.16(f), when the performance of any covenant, duty or obligation under any Credit Document is required to be performed on a day which is not a Business Day, the date of such performance shall extend to the immediately succeeding Business Day.

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

1.7 Pro Forma Calculations and Adjustments.

(a) For purposes of calculating the compliance of any transaction with any provision hereof that requires such compliance to be on a “Pro Forma Basis”, such transaction shall be deemed to have occurred as of the first day of the most recently ended Test Period.

(b) In connection with the calculation of any ratio hereunder upon giving effect to a transaction on a “Pro Forma Basis”, (i) any Indebtedness incurred, acquired or assumed, or repaid, by Holdingsthe Borrower or any Restricted Subsidiary in connection with such transaction (or any other transaction which occurred during the relevant Test Period (which, in the case of (A) any period prior to the consummation of the Qualified Borrower IPO, such relevant Test Period shall include any Indebtedness incurred, acquired, assumed or repaid by Holdings in connection with any such transaction, in each case, prior to the consummation of the Qualified Borrower IPO and (B) any period prior to the Sixth Amendment Effective Date, such relevant Test Period shall include any Indebtedness incurred, acquired, assumed or repaid by any Released Credit Party in connection with any such transaction, in each case, prior to the Sixth Amendment Effective Date) shall be deemed to have been incurred, acquired or assumed, or repaid, as the case may be, as of the first day of the relevant Test Period, (ii) if such Indebtedness has a floating or formula rate, then the rate of interest for such Indebtedness for the applicable

 

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period for purposes of the calculations contemplated by this definition shall be determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of such calculations, (iii) such calculation shall be made without regard to the netting of any cash proceeds of (A) Indebtedness incurred by the Borrower or any Restricted Subsidiary, (B) Indebtedness incurred by Holdings or any Restricted Subsidiaryprior to the consummation of the Qualified Borrower IPO and (C) Indebtedness incurred by any Released Credit Party prior to the Sixth Amendment Effective Date, in each case, in connection with such transaction (but without limiting the pro forma effect of any prepayment of Indebtedness with such cash proceeds), (iv) if any Indebtedness incurred, acquired or assumed is in the nature of a revolving credit facility, the entire principal amount of such facility shall be deemed to have been drawn, and (v) the calculation of such ratio shall be made giving pro forma effect to the transaction consummated (or anticipated to be consummated, if applicable) in connection with the incurrence, acquisition or assumption of such Indebtedness.

(c) Notwithstanding anything in this Agreement or any other Credit Document to the contrary, if any Indebtedness (other than with respect to the incurrence of Revolving Loans) is incurred, acquired, or assumed in connection with a Limited Condition Acquisition, then compliance with any applicable ratio, test or other basket hereunder on a Pro Forma Basis may be determined, at the option of the BorrowersBorrower , either (x) as of the time of entry into the applicable acquisition agreement or (y) at the time of incurrence, acquisition or assumption, as applicable, of such Indebtedness; provided, if the Borrowers electBorrower elects to have such determination occur at the time of entry into such applicable acquisition agreement, the Indebtedness to be incurred (and any associated Lien) shall be deemed incurred at the time of such determination and outstanding thereafter for purposes of determining compliance on a Pro Forma Basis with any applicable ratio, test or other basket tested after such time of entry, which ratio, test or other basket shall be calculated both (I) on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (II) on a Pro Forma Basis assuming such Limited Condition Acquisition and the other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated (and Indebtedness not incurred) until such time as either (i) such acquisition agreement is terminated without actually consummating such Limited Condition Acquisition, or (ii) such Limited Condition Acquisition is consummated. For the avoidance of doubt no pro forma adjustments for Limited Condition Acquisitions pursuant to this Section 1.7 will apply for purposes of determining compliance with Section 6.7 hereof.

1.8 Currency Equivalents, Generally.

(a) Except as expressly provided herein, any amount specified in this Agreement or any other Credit Document to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined at the applicable Exchange Rate; provided that the determination of the Dollar Amount of any Loan or Letter of Credit denominated in an Alternative Currency shall be made in accordance with Section 2.28; provided that if any basket amount expressed in Dollars is exceeded solely as a result of fluctuations in applicable currency exchange rates after the last time such basket was utilized, such basket will not be deemed to have been exceeded solely as a result of such fluctuations in currency exchange rates. In addition, if any Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars, and such refinancing would cause the applicable dollar-denominated restriction in Section 6.1 to be exceeded if calculated at the applicable Dollar Amount on the date of such refinancing, such dollar-denominated restrictions shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the sum of (i) the outstanding or committed principal amount, as applicable of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.

 

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(b) For purposes of determining the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio and the Consolidated Total Net Leverage Ratio, amounts denominated in a currency other than Dollars will be converted to Dollars for the purposes of (i) testing the financial covenant under Section 6.7, at the Exchange Rate in respect thereof as of the last day of the Fiscal Quarter for which such measurement is being made, and (ii) calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio and the Consolidated Total Net Leverage Ratio (other than for the purposes of determining compliance with Section 6.7), at the Exchange Rate as of the date of calculation, and will, in the case of Indebtedness, reflect the currency translation effects, determined in accordance with GAAP, of Swap Contracts permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar Amount of such Indebtedness.

(c) For the purposes of determining the Dollar Amount of any amount specified in Section 2 on any date, any amount in a currency other than Dollars shall be converted to Dollars at the Exchange Rate as of the most recent Exchange Rate Reset Date occurring on or prior to such date.

1.9 Available Amount Transactions. If more than one action occurs on a given date the permissibility of the taking of which is determined hereunder by reference to the amount of the Available Amount 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.

1.10 Financial Definitions. Notwithstanding anything to the contrary in this Agreement, for the purposes of calculating or otherwise determining for any period and/or date of determination any of Consolidated Adjusted EBTDA, Consolidated Excess Cash Flow, Consolidated First Lien Debt, the Consolidated First Lien Net Leverage Ratio, Consolidated Net Income, Consolidated Secured Lien Debt, the Consolidated Secured Net Leverage Ratio, Consolidated Total Debt, the Consolidated Total Net Leverage Ratio, Consolidated Working Capital, Funded Indebtedness, Internally Generated Cash, Qualified Cash, and any other definitions set forth in the definitions of any of the foregoing, (i) in the case of any such calculation and/or determination to be made in respect of any period and/or date of determination prior to the consummation of the Qualified Borrower IPO, such calculation and/or determination shall include Holdings and its Subsidiaries at such time (if, and to the same extent that, such Persons would have been included in such calculation and/or determination immediately prior to the Qualified Borrower IPO) and (ii) in the case of any such calculation and/or determination to be made in respect of any period and/or date of determination prior to the Sixth Amendment Effective Date, such calculation and/or determination shall include the Released Credit Parties (if, and to the same extent that, the Released Credit Parties would have been included in such calculation and/or determination immediately prior to the Sixth Amendment Effective Date).

1.11 Mandatory Prepayments. Notwithstanding anything to the contrary in this Agreement, for the purposes of calculating or otherwise determining for any period and/or date of determination any mandatory prepayment required under Section 2.14 and/or Section 2.15 (including the definitions of Net Asset Sale Proceeds, Net Insurance/Condemnation Proceeds, and any definitions set forth in the definitions of each of the foregoing) (i) in the case of any such calculation and/or determination to be made in respect of any period and/or date of determination prior to the consummation of the Qualified Borrower IPO, such calculation and/or determination shall include Holdings and its Subsidiaries at such time (if, and to the same extent that, such Persons would have been included in such calculation and/or determination immediately prior to the Qualified Borrower IPO) and (ii) in the case of any such calculation and/or determination to be made in respect of any period and/or date of determination prior to the Sixth Amendment Effective Date, such calculation and/or determination shall include the Released Credit Parties (if, and to the same extent that, the Released Credit Parties would have been included in such calculation and/or determination immediately prior to the Sixth Amendment Effective Date).

 

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1.10 Luxembourg Terms. In this Agreement and any other Credit Document, where it relates to an entity incorporated in Luxembourg, a reference to: winding up, administration or dissolution includes, without limitation, any procedure or proceeding in relation to an entity becoming bankrupt (faillite), insolvency, voluntary or judicial liquidation, composition with creditors (concordat préventif de faillite), moratorium or reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), fraudulent conveyance (actio pauliana), general settlement with creditors, reorganisation or any other similar proceedings affecting the rights of creditors generally under Luxembourg law, and shall be construed so as to include any equivalent or analogous liquidation or reorganisation proceedings;

(b) an agent includes, without limitation, a “mandataire”;

(c) a receiver, administrative receiver, administrator or the like includes, without limitation, a juge délégué, commissaire, juge-commissaire, liquidateur or curateur or any other person performing the same function of each of the foregoing;

(d) a matured obligation includes, without limitation, any exigible, certaine and liquide obligation;

(e) security or a security interest includes, without limitation, any hypothèque, nantissement, privilège, accord de transfert de propriété à titre de garantie, gage sur fonds de commerce or sûreté réelle whatsoever whether granted or arising by operation of law;

(f) a person being unable to pay its debts includes, without limitation, that person being in a state of cessation of payments (cessation de paiements);

(g) an attachment includes a saisie;

(h) by-laws or constitutional documents includes its up-to-date (restated) articles of association (statuts); and

(i) a director, officer or manager includes a gérant or an administrateur.

1.11 Dutch Terms. In this Agreement and any other Credit Document, where it relates to an entity incorporated in The Netherlands, a reference to:

(a) “The Netherlands” means the European part of the Kingdom of the Netherlands and Dutch means in or of The Netherlands;

(b) “works council” means each works council (ondernemingsraad) or central or group works council (centrale of groeps ondernemingsraad) having jurisdiction over that person;

(c) a “necessary action to authorise” includes any action required to comply with the Works Councils Act of The Netherlands (Wet op de ondernemingsraden), followed by an unconditional positive advice (advies) from the works council of that person;

(d) “financial assistance” includes any act contemplated by Section 2:98c of the Dutch Civil Code;

 

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(e) “constitutional documents” means the articles of association (statuten) and deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Trade Register of the Dutch Chamber of Commerce;

(f) a “security interest” or “security” includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van retentie), right to reclaim goods (recht van reclame) and any right in rem (beperkt recht) created for the purpose of granting security (goederenrechtelijke zekerheid);

(g) a “winding-up”, “administration” or “dissolution” includes declared bankrupt (failliet verklaard) or dissolved (ontbonden);

(h) a “moratorium” includes (voorlopige) surseance van betaling and a moratorium is declared includes surseance verleend;

(i) any “procedure” or “step” taken in connection with insolvency proceedings includes that person having filed a notice under Section 36 of the Tax Collection Act of The Netherlands (Invorderingswet 1990);

(j) a “liquidator” includes a curator or a beoogd curator;

(k) an “administrator” includes a bewindvoerder or a beoogd bewindvoerder;

(l) an “attachment” includes a beslag;

(m) “negligence” means schuld;

(n) “gross negligence” means grove schuld; and

(o) “wilful misconduct” means opzet.

SECTION 2. LOANS AND LETTERS OF CREDIT

2.1 Term Loans.

(a) Term Loan Commitments. Subject to the terms and conditions hereof, each Lender severally agrees to make, on the Closing Date, a Term Loan denominated in Dollars to the Borrower and the Released Borrowers on a joint and several basis in an amount equal to such Lender’s Term Loan Commitment. The Borrower and the Released Borrowers may make only one borrowing under each Term Loan Commitment. Each Lender’s Term Loan Commitment shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s Term Loan Commitment on such date. The Term Loans shall only be denominated in Dollars and may be Base Rate Loans or Eurodollar Loans as further provided herein. Subject to the terms and conditions set forth in the Fourth Amendment and this Agreement (as amended thereby), (x) each New 2018 Replacement Term Lender severally agrees to make to the Borrower and the Released Borrowers on the Fourth Amendment Effective Date New 2018 Replacement Term Loans in an aggregate amount not to exceed the amount of such New 2018 Replacement Term Lender’s 2018 Replacement Term Loan Commitment and (y) each 2018 Converting Term Lender severally agrees, that, pursuant to the 2018 Replacement Term Loan Conversion, without any further action by any party to this Agreement, the portion of such 2018 Converting Term Lender’s Term Loans equal to such 2018 Converting Term Lender’s 2018 Replacement Term Loan Conversion Amount shall automatically be converted into 2018 Replacement Term Loans in a like principal amount on the Fourth Amendment Effective Date.

 

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(b) Repayments and Prepayments. Any amount of the Term Loans that is subsequently repaid or prepaid may not be reborrowed.

(c) Maturity. Subject to Sections 2.13(a), 2.14, 2.24, 2.25 and 2.26, all amounts owed hereunder with respect to the Term Loans shall be paid in full no later than the Term Loan Maturity Date.

(d) Funding Notice. The Borrower Representative shall have delivered to the Administrative Agent a fully executed Funding Notice no later than 12:00 noon (New York City time) on the Business Day prior to the Closing Date or such later date or time as is otherwise agreed by the Administrative Agent (or, in the case of a request for Eurodollar Loans, three Business Days prior to the Closing Date or such later date or time as is otherwise agreed by the Administrative Agent) and, promptly upon receipt thereof, the Administrative Agent shall have notified each Lender of the proposed borrowing.

(e) Funding to the Administrative Agent. Each Lender shall make its Term Loan available to the Administrative Agent not later than 12:00 noon (New York City time) on the Closing Date, by wire transfer of same day funds in Dollars, at the Payment Office.

(f) Availability of Funds. Upon satisfaction or waiver of the conditions precedent specified herein, the Administrative Agent shall make the proceeds of the Term Loans available to the Borrower and the Released Borrowers on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such requested Loans received by the Administrative Agent from the Lenders to be credited to the account of the Borrower and the Released Borrowers at the Payment Office or to such other account as may be designated in writing to the Administrative Agent by the Borrower and the Released Borrowers.

2.2 Revolving Loans.

(a) Revolving Credit Commitments. During the Revolving Credit Commitment Period, subject to the terms and conditions hereof, each Lender severally agrees to make Revolving Loans denominated in Dollars or in one or more Alternative Currencies to the Borrowers on a joint and several basisBorrower in an aggregate Dollar Amount up to but not exceeding such Lender’s Revolving Credit Commitment; provided, after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of Revolving Credit Commitments exceed the Revolving Credit Limit. The Revolving Loans may be denominated in Dollars and in Alternative Currencies and may be Base Rate Loans (if denominated in Dollars) or Eurodollar Loans (if denominated in Dollars or in an Alternative Currency) as further provided herein.

(b) Repayments and Prepayments. Amounts borrowed pursuant to this Section 2.2 may be repaid and reborrowed during the Revolving Credit Commitment Period.

(c) Maturity. Each Lender’s Revolving Credit Commitment shall expire on the Revolving Credit Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Credit Commitments shall be paid in full no later than such date.

(d) Minimum Amounts. Except pursuant to Section 2.4(d), Revolving Loans that are Base Rate Loans shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount, and Revolving Loans that are Eurodollar Loans shall be in an aggregate minimum Dollar Amount of $500,000 and integral multiples of a Dollar Amount of $100,000 in excess of that amount.

 

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(e) Notice to the Administrative Agent. Whenever the Borrowers desireBorrower desires that the Lenders make Revolving Loans, the Borrower Representative shall deliver to the Administrative Agent at the Notice Office a fully executed and delivered Funding Notice no later than 12:00 noon (New York City time) at least three Business Days in advance of the proposed Credit Date (or with respect to any Revolving Loans to be made on the Closing Date, such later date or time as is otherwise agreed by the Administrative Agent) in the case of a Eurodollar Loan, and at least one Business Day in advance of the proposed Credit Date (or with respect to any Revolving Loans to be made on the Closing Date, such later date or time as is otherwise agreed by the Administrative Agent) in the case of a Revolving Loan that is a Base Rate Loan. Except as otherwise provided herein, a Funding Notice for a Revolving Loan that is a Eurodollar Loan shall be irrevocable on and after the date of receipt thereof by the Administrative Agent, and the BorrowersBorrower shall be bound to make a borrowing in accordance therewith.

(f) Notice to Lenders. Notice of receipt of each Funding Notice in respect of Revolving Loans, together with the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest rate, shall be provided by the Administrative Agent to each applicable Lender in accordance with Section 10.1(a) with reasonable promptness.

(g) Availability of Funds. Each Lender shall make the amount of its Revolving Loan available to the Administrative Agent not later than 2:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at the Payment Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, the Administrative Agent shall make the proceeds of such Revolving Loans available to the BorrowersBorrower on the applicable Credit Date by causing an amount of same day funds in Dollars (in the case of any Revolving Loans denominated in Dollars) and/or the applicable Alternative Currency (in the case of any Revolving Loans denominated in such Alternative Currency) in an amount equal to the proceeds of all requested Revolving Loans received by the Administrative Agent from the Lenders to be credited to the account of the BorrowersBorrower at the Payment Office or such other account as may be designated in writing to the Administrative Agent by the BorrowersBorrower .

2.3 Swing Line Loans.

(a) Swing Line Loans. During the Revolving Credit Commitment Period, subject to the terms and conditions hereof, the Swing Line Lender hereby agrees to make Swing Line Loans in Dollars to the BorrowersBorrower ; provided, after giving effect to the making of any Swing Line Loan, in no event shall (x) the Swing Line Loan Outstandings exceed the Swing Line Sub-limit then in effect or (y) the Total Utilization of Revolving Credit Commitments exceed the Revolving Credit Limit. Each Swing Line Loan shall only be denominated in Dollars and shall only be a Base Rate Loan.

(b) Repayments and Prepayments. Amounts borrowed pursuant to this Section 2.3 may be repaid and reborrowed during the Revolving Credit Commitment Period.

(c) Maturity. The Swing Line Lender’s obligation to make Swing Line Loans pursuant to this Section 2.3 shall expire on the Revolving Credit Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than such date.

(d) Minimum Amounts. Swing Line Loans shall be made in an aggregate minimum Dollar Amount of $100,000 and integral multiples a Dollar Amount of $100,000 in excess of that amount.

 

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(e) Notice to Swing Line Lender. Whenever the Borrowers desireBorrower desires that the Swing Line Lender make a Swing Line Loan, the Borrower Representative shall deliver to the Administrative Agent a Funding Notice no later than 1:00 p.m. (New York City time) on the proposed Credit Date.

(f) Availability of Funds. The Swing Line Lender shall make the amount of its Swing Line Loan available to the Administrative Agent not later than 3:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at the Payment Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, the Administrative Agent shall make the proceeds of such Swing Line Loans available to the BorrowersBorrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Swing Line Loans received by the Administrative Agent from the Swing Line Lender to be credited to the account of the BorrowersBorrower at the Payment Office, or to such other account as may be designated in writing to the Administrative Agent by the BorrowersBorrower .

(g) Refunded Swing Line Loans. With respect to any Swing Line Loans which have not been voluntarily prepaid by the BorrowersBorrower pursuant to Section 2.13, the Swing Line Lender may at any time in its sole and absolute discretion, deliver to the Administrative Agent (with a copy to the Borrower Representative), no later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date, a notice (which shall be deemed to be a Funding Notice given by the Borrower Representative) requesting that each Lender holding a Revolving Credit Commitment make Revolving Loans that are Base Rate Loans to the BorrowersBorrower on such Credit Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which the Swing Line Lender requests the Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by the Lenders other than the Swing Line Lender shall be immediately delivered by the Administrative Agent to the Swing Line Lender (and not to the Borrower Representative) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, the Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by the Swing Line Lender to the BorrowersBorrower , and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of the Swing Line Lender but shall instead constitute part of the Swing Line Lender’s outstanding Revolving Loans to the BorrowersBorrower and shall be due to the Swing Line Lender under the Revolving Loan Note issued by the BorrowersBorrower to the Swing Line Lender. The BorrowersBorrower hereby authorizes the Administrative Agent and the Swing Line Lender to charge the Borrowers’Borrower’s accounts with the Administrative Agent and the Swing Line Lender (up to the amount available in each such account) in order to immediately pay the Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by the Lenders, including the Revolving Loans deemed to be made by the Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to be paid) to the Swing Line Lender should be recovered by or on behalf of the BorrowersBorrower from the Swing Line Lender in any proceeding under any Debtor Relief Law or otherwise, the loss of the amount so recovered shall be ratably shared among all of the Lenders in the manner contemplated by Section 2.17.

(h) Lenders’ Purchase of Participations in Swing Line Loans. If for any reason Revolving Loans are not made pursuant to Section 2.3(g) in an amount sufficient to repay any amounts owed to the Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after demand for payment thereof by the Swing Line Lender, each Lender holding a Revolving Credit Commitment shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans, and in an amount equal to its Pro Rata Share of the applicable

 

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unpaid amount together with accrued interest thereon. Upon one Business Day’s notice from the Swing Line Lender, each Lender holding a Revolving Credit Commitment shall deliver to the Swing Line Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the Payment Office of the Swing Line Lender. In order to evidence such participation each Lender holding a Revolving Credit Commitment agrees to enter into a participation agreement at the request of the Swing Line Lender in form and substance reasonably satisfactory to the Swing Line Lender (but the failure of any such Lender to enter into such a participation agreement shall have no effect on the obligations of such Lender to the Swing Line Lender as set forth herein). In the event any Lender holding a Revolving Credit Commitment fails to make available to the Swing Line Lender the amount of such Lender’s participation as provided in this Section, the Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by the Swing Line Lender for the correction of errors among banks and thereafter at the Base Rate, as applicable.

(i) Absolute and Unconditional Obligations. Notwithstanding anything contained herein to the contrary, (i) each Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to Section 2.3(g) and each Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to Section 2.3(h) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set off, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, any Credit Party or any other Person for any reason whatsoever; (B) the occurrence or continuation of a Default or Event of Default; (C) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Credit Party; (D) any breach of this Agreement or any other Credit Document by any party thereto; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided, such obligations of each Lender are subject to the condition that the Swing Line Lender had not received prior notice from the Borrower Representative or the Required Lenders that any of the conditions under Section 3.2 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were not satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made; and (ii) the Swing Line Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not to do so after the occurrence and during the continuation of a Default or Event of Default, (B) it does not in good faith believe that all conditions under Section 3.2 to the making of such Swing Line Loan have been satisfied or waived by the Required Lenders or (C) at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the BorrowersBorrower to eliminate the Swing Line Lender’s risk with respect to the Defaulting Lender’s participation in such Swing Line Loan, including by Cash Collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line Loans.

(j) Resignation of Swing Line Lender. The Swing Line Lender may resign as Swing Line Lender upon thirty days prior written notice to the Administrative Agent, Lenders and the Borrower Representative. Upon any such notice of resignation, the Required Lenders shall have the right, upon five Business Days’ notice to the Borrower Representative, to appoint a successor Swing Line Lender with the consent of the BorrowersBorrower ; provided, (x) no such consent of the BorrowersBorrower shall be required while an Event of Default exists and (y) such consent shall not be unreasonably withheld, delayed or conditioned, and shall be deemed to have been given unless the BorrowersBorrower shall have objected to such appointment by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; provided, failing such appointment, the retiring Swing Line Lender may appoint, on behalf of the Lenders, a successor Swing Line Lender from among the Lenders or any other financial institution. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the thirtieth day following such written notice. At the time any such resignation shall become effective, (i) the BorrowersBorrower shall prepay any outstanding Swing Line Loans made by the resigning Swing Line Lender, (ii) upon such prepayment, the resigning

 

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Swing Line Lender shall surrender any Swing Line Note held by it to the BorrowersBorrower for cancellation, and (iii) the BorrowersBorrower shall issue, if so requested by the successor Swing Line Lender, a new Swing Line Note to the successor Swing Line Lender, in the principal amount of the Swing Line Sub-limit then in effect and with other appropriate insertions. From and after the effective date of any such resignation, (A) any successor Swing Line Lender shall have all the rights and obligations of the Swing Line Lender under this Agreement with respect to Swing Line Loans made thereafter and (B) references herein to the term “Swing Line Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such successor and all previous Swing Line Lender, as the context shall require.

(k) Provisions Related to Extended Revolving Credit Commitments. If the maturity date shall have occurred in respect of any tranche of Revolving Credit Commitments at a time when another tranche or tranches of Revolving Credit Commitments is or are in effect with a longer maturity date, then on the earliest occurring maturity date all then outstanding Swing Line Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swing Line Loans as a result of the occurrence of such maturity date); provided, however, that if on the occurrence of such earliest maturity date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.4(l)), there shall exist sufficient unutilized Extended Revolving Credit Commitments so that the respective outstanding Swing Line Loans could be incurred pursuant the Extended Revolving Credit Commitments which will remain in effect after the occurrence of such maturity date, then if consented to by the Swing Line Lender, there shall be an automatic adjustment on such date of the participations in such Swing Line Loans and same shall be deemed to have been incurred solely pursuant to the relevant Extended Revolving Credit Commitments, and such Swing Line Loans shall not be so required to be repaid in full on such earliest maturity date. For the avoidance of doubt, the commitment of the Swing Line Lender to act in its capacity as such cannot be extended beyond the Revolving Credit Commitment Termination Date or increased without its prior written consent.

2.4 Letters of Credit.

(a) Letters of Credit. During the Revolving Credit Commitment Period, subject to the terms and conditions hereof, the Issuing Bank agrees to issue Letters of Credit for the joint and several account of the Borrowers (on a joint and several basis)Borrower or any Restricted Subsidiary (provided, that in the case of any Letter of Credit issued for the account of a Restricted Subsidiary, the BorrowersBorrower shall be co-applicant and jointly and severally liable with respect thereto) in the aggregate amount up to but not exceeding the Dollar Amount of the Letter of Credit Sub-limit; provided, (i) each Letter of Credit shall be denominated in Dollars or, at the option of the BorrowersBorrower , in an Alternative Currency; (ii) the stated amount of each Letter of Credit shall not be less than a Dollar Amount equal to $250,000 or such lesser amount as is acceptable to the Issuing Bank; (iii) immediately after giving effect to such issuance, in no event shall the Dollar Amount of the Total Utilization of Revolving Credit Commitments exceed the Dollar Amount of the Revolving Credit Limit then in effect; (iv) immediately after giving effect to such issuance, in no event shall the Dollar Amount of the Letter of Credit Obligations exceed the Dollar Amount of the Letter of Credit Sub-limit then in effect; (v) immediately after giving effect to such issuance, in no event shall the aggregate Dollar Amount of all Letters of Credit issued by Macquarie Capital Funding LLC, in its capacity as an Issuing Bank, exceed the Macquarie Lender LC Cap (unless agreed to in writing by Macquarie Capital Funding LLC in its sole discretion); (vi) immediately after giving effect to such issuance, in no event shall the aggregate Dollar Amount of all Letters of Credit issued by BNP Paribas, in its capacity as an Issuing Bank, exceed the BNPP LC Cap (unless agreed to in writing by BNP Paribas in its sole discretion); (vii) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (A) the date that is the fifth Business Day prior to the scheduled Revolving Credit Commitment Termination Date and (B) the date which is one year from the date of issuance of such standby Letter of Credit; and (viii) in no event shall any commercial or trade Letter of

 

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Credit (A) have an expiration date later than the earlier of (1) the date that is the fifth Business Day prior to the Revolving Credit Commitment Termination Date and (2) the date that is one hundred eighty days from the date of issuance of such commercial Letter of Credit or (B) be issued if such commercial Letter of Credit is otherwise unacceptable to the Issuing Bank in its reasonable discretion. Subject to the foregoing, the Issuing Bank may agree that a standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year (but, absent the consent of the Issuing Bank, not beyond the date that is five Business Days prior to the scheduled Revolving Credit Commitment Termination Date unless Cash Collateralized or backstopped pursuant to arrangements reasonably satisfactory to the Issuing Bank thereof) each, unless the Issuing Bank elects not to extend for any such additional period; provided, the Issuing Bank shall not extend any such Letter of Credit if it has received written notice that an Event of Default has occurred and is continuing at the time the Issuing Bank must elect to allow such extension.

(b) Notice of Issuance. Whenever the Borrowers desireBorrower desires the issuance of a Letter of Credit, the Borrower Representative shall deliver to the Issuing Bank, with a copy to the Administrative Agent, an Issuance Notice no later than 12:00 noon (New York City time) at least five Business Days, or such shorter period as may be agreed to by the Issuing Bank in any particular instance, in advance of the proposed date of issuance. Upon satisfaction or waiver of the conditions set forth in Section 3.2, the Issuing Bank shall issue the requested Letter of Credit only in accordance with the Issuing Bank’s standard operating procedures. Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit, the Issuing Bank shall promptly notify the Administrative Agent who shall notify each Lender with a Revolving Credit Commitment of such issuance, which notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a Letter of Credit and the amount of such Lender’s respective participation in such Letter of Credit pursuant to Section 2.4(e).

(c) Responsibility of the Issuing Bank With Respect to Requests for Drawings and Payments. In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof, the Issuing Bank shall be responsible only to examine the documents delivered under such Letter of Credit with reasonable care so as to ascertain whether they appear on their face to be in accordance with the terms and conditions of such Letter of Credit. As between the BorrowersBorrower and the Issuing Bank, the Borrowers assumeBorrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by the Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, neither the Issuing Bank nor the Administrative Agent shall be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such 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; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Issuing Bank, including any Governmental Acts; none of the above shall affect or impair, or prevent the vesting of, any of the Issuing Bank’s rights or powers hereunder. Notwithstanding anything to the contrary contained in this Section 2.4(c), the BorrowersBorrower shall retain any and all rights it may have against the Issuing Bank for any liability to the extent arising out of the gross negligence or willful misconduct of, or material breach by, the Issuing Bank as determined by a final, non-appealable judgment of a court of competent jurisdiction.

 

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(d) Reimbursement by Borrower of Amounts Drawn or Paid Under Letters of Credit. If the Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately notify the Borrower Representative and the Administrative Agent, and the BorrowersBorrower shall reimburse the Issuing Bank on or before the Business Day immediately following the date on which such drawing is honored (the “Reimbursement Date”) in a Dollar Amount and in same day funds equal to the amount of such honored drawing; provided, anything contained herein to the contrary notwithstanding, (i) unless the Borrower Representative shall have notified the Administrative Agent and the Issuing Bank prior to 10:00 a.m. (New York City time) on the date such drawing is honored that the Borrowers intendBorrower intends to reimburse the Issuing Bank for the Dollar Amount of such honored drawing with funds other than the proceeds of Revolving Loans, the Borrower Representative shall be deemed to have given a timely Funding Notice to the Administrative Agent requesting each Lender with a Revolving Credit Commitment to make Revolving Loans that (A) are Base Rate Loans (in the case of any applicable Letter of Credit that is denominated in Dollars) or (B) Eurodollar Loans (in the case of any applicable Letter of Credit that is denominated in an Alternative Currency), in either case, on the Reimbursement Date in a Dollar Amount equal to the amount of such honored drawing, and (ii) regardless of whether the conditions specified in Section 3.2 are satisfied, each Lender with a Revolving Credit Commitment shall, on the Reimbursement Date, make Revolving Loans that are (A) Base Rate Loans (in the case of any applicable Letter of Credit that is denominated in Dollars) or (B) Eurodollar Loans (in the case of any applicable Letter of Credit that is denominated in an Alternative Currency), in either case, in the Dollar Amount of such honored drawing, the proceeds of which shall be applied directly by the Administrative Agent to reimburse the Issuing Bank for the Dollar Amount of such honored drawing; and provided further, if for any reason proceeds of Revolving Loans are not received by the Issuing Bank on the Reimbursement Date in an amount equal to the Dollar Amount of such honored drawing, the BorrowersBorrower shall reimburse the Issuing Bank, on demand, in an amount equal to the Dollar Amount in Dollars and in same day funds equal to the excess of the Dollar Amount of such honored drawing over the aggregate amount of such Revolving Loans, if any, which are so received. Nothing in this Section 2.4(d) shall be deemed to relieve any Lender with a Revolving Credit Commitment from its obligation to make Revolving Loans on the terms and conditions set forth herein, and the BorrowersBorrower shall retain any and all rights it may have against any Lender resulting from the failure of such Lender to make such Revolving Loans under this Section 2.4(d).

(e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the issuance of each Letter of Credit, each Lender having a Revolving Credit Commitment shall be deemed to have purchased, and hereby agrees to irrevocably purchase, from the Issuing Bank a participation in such Letter of Credit and any drawings honored thereunder in a Dollar Amount equal to such Lender’s Pro Rata Share (with respect to the Revolving Credit Commitments) of the maximum amount which is or at any time may become available to be drawn thereunder. In the event that the BorrowersBorrower shall fail for any reason to reimburse the Issuing Bank as provided in Section 2.4(d), the Issuing Bank shall promptly notify each Lender with a Revolving Credit Commitment of the unreimbursed amount of such honored drawing and of such Lender’s respective participation therein based on such Lender’s Pro Rata Share of the Revolving Credit Commitments. Each Lender with a Revolving Credit Commitment shall make available to the Issuing Bank a Dollar Amount equal to its respective participation, in same day funds, at the office of the Issuing Bank specified in such notice, not later than 12:00 noon (New York City time) on the first Business Day (under the Laws of the jurisdiction in which such office of the Issuing Bank is located) after the date notified by the Issuing Bank. In the event that any Lender with a Revolving Credit Commitment fails to make available to the Issuing Bank on such Business Day the Dollar Amount of such Lender’s participation in such Letter of Credit as provided in this Section 2.4(e), the Issuing Bank shall be entitled to recover such Dollar Amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by the Issuing Bank for the correction of errors among

 

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banks and thereafter at the Base Rate. Nothing in this Section 2.4(e) shall be deemed to prejudice the right of any Lender with a Revolving Credit Commitment to recover from the Issuing Bank any amounts made available by such Lender to the Issuing Bank pursuant to this Section in the event that it is determined that the payment with respect to a Letter of Credit in respect of which payment was made by such Lender constituted gross negligence or willful misconduct on the part of the Issuing Bank. In the event the Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section 2.4(e) for all or any portion of any drawing honored by the Issuing Bank under a Letter of Credit, the Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this Section 2.4(e) with respect to such honored drawing such Lender’s Pro Rata Share of all payments subsequently received by the Issuing Bank from the BorrowersBorrower in reimbursement of such honored drawing when such payments are received. Any such distribution shall be made to a Lender at its primary address set forth below its name on Appendix B or at such other address as such Lender may request.

(f) Obligations Absolute. The obligation of the BorrowersBorrower to reimburse the Issuing Bank for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by the Lenders pursuant to Section 2.4(d) and the obligations of the Lenders under Section 2.4(e) shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under all circumstances including any of the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other right which the BorrowersBorrower or any Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), the Issuing Bank, Lender or any other Person or, in the case of a Lender, against the BorrowersBorrower , whether in connection herewith, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the BorrowersBorrower or any Restricted Subsidiary and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document presented under any 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; (iv) payment by the Issuing Bank under any Letter of Credit against presentation of a draft or other document which does not substantially comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings, the BorrowersBorrower or any of the Restricted Subsidiaries; (vi) any breach hereof or any other Credit Document by any party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the fact that an Event of Default or a Default shall have occurred and be continuing; provided, in each case, that payment by the Issuing Bank under the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct of the Issuing Bank under the circumstances in question as determined by a final, non-appealable judgment of a court of competent jurisdiction.

(g) Indemnification. Without duplication of any obligation of the BorrowersBorrower under Section 10.2 or 10.3, in addition to amounts payable as provided herein, the BorrowersBorrower hereby agreeagrees to protect, indemnify, pay and save harmless the Issuing Bank from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of external counsel) which the Issuing Bank incurs or is subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by the Issuing Bank, other than as a result of (A) the gross negligence or willful misconduct of the Issuing Bank as determined by a final, non-appealable judgment of a court of competent jurisdiction or (B) the wrongful dishonor by the Issuing Bank of a proper demand for payment made under any Letter of Credit issued by it, or (ii) the failure of the Issuing Bank to honor a drawing under any such Letter of Credit as a result of any Governmental Act.

 

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(h) Cash Collateralization - BorrowersBorrower . If any Letter of Credit is outstanding at the time that the Borrowers prepay, or areBorrower prepays, or is required to repay, the Obligations (other than the Remaining Obligations) or the Revolving Credit Commitments are terminated, the BorrowersBorrower shall Cash Collateralize the Issuing Bank’s Letter of Credit Obligations in a Dollar Amount not less than the Minimum Collateral Amount, to reimburse payments of drafts drawn under such Letters of Credit and pay any fees and expenses related thereto. Upon termination of any such Letter of Credit, such deposit shall be refunded to the BorrowersBorrower to the extent not previously applied by the Administrative Agent in the manner described herein.

(i) Cash Collateralization - Defaulting Lenders. At any time that there shall exist a Defaulting Lender, within three Business Days following the written request of the Administrative Agent or the Issuing Bank (with a copy to the Administrative Agent) the BorrowersBorrower shall Cash Collateralize the Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.22(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in a Dollar Amount not less than the Minimum Collateral Amount.

(i) Grant of Security Interest. The BorrowersBorrower , and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Bank, and agrees to maintain, a First Priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letter of Credit Obligations, to be applied pursuant to clause (ii) below.

(ii) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.4(i) or Section 2.22 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letter of Credit Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(iii) Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce the Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.4(i) following (A) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (B) the determination by the Administrative Agent and the Issuing Bank that there exists excess Cash Collateral; provided, subject to Section 2.22(a)(v), the Person providing Cash Collateral and the Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations; provided further, to the extent that such Cash Collateral was provided by the BorrowersBorrower , such Cash Collateral shall remain subject to the security interest granted pursuant to the Credit Documents.

(j) Additional Issuing Banks. The BorrowersBorrower may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld) and such Lender, designate one or more additional Lenders having a Revolving Credit Commitment at such time to act as an Issuing Bank under the terms of this Agreement. Any such Lender designated as an Issuing Bank pursuant to this subsection 2.4(j) shall be deemed to be an “Issuing Bank” (in addition to being a Lender) in respect of Letters of Credit issued or to be issued by such Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Bank or Issuing Banks and such Lender.

 

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(k) Resignation of the Issuing Bank. The Issuing Bank may resign as the Issuing Bank upon thirty days prior written notice to the Administrative Agent, Lenders and the Borrower Representative. Upon any such notice of resignation, the Required Lenders shall have the right, upon five Business Days’ notice to the Borrower Representative, to appoint a successor Issuing Bank with the consent of the BorrowersBorrower ; provided, (x) no such consent of the BorrowersBorrower shall be required while an Event of Default exists and (y) such consent shall not be unreasonably withheld, delayed or conditioned, and shall be deemed to have been given unless the BorrowersBorrower shall have objected to such appointment by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; provided, failing such appointment, the retiring Issuing Bank may appoint, on behalf of the Lenders, a successor Issuing Bank from among the Lenders or any other financial institution. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the thirtieth day following such written notice. At the time any such resignation shall become effective, the BorrowersBorrower shall pay all unpaid fees accrued for the account of the replaced the Issuing Bank. From and after the effective date of any such resignation, (i) any successor to the Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous the Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the resignation of the Issuing Bank hereunder, the resigning Issuing Bank shall remain a party hereto to the extent that Letters of Credit issued by it remain outstanding and shall continue to have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters of Credit.

(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 consented to by the Issuing Bank which issued such Letter of Credit, 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 Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to this Section 2.4) 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 BorrowersBorrower shall Cash Collateralize any such Letter of Credit in accordance with the terms hereof. If, for any reason, such Cash Collateral is not provided or the reallocation does not occur, the Lenders under the maturing tranche shall continue to be responsible for their participating interests in the Letters of Credit. Except to the extent of reallocations of participations pursuant to clause (i) of the second 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 Lenders in any Letter of Credit issued before such maturity date. Commencing with the maturity date of any tranche of Revolving Credit Commitments, the sub-limit for Letters of Credit shall be agreed with the Lenders under the extended tranches. For the avoidance of doubt, notwithstanding anything contained herein, the commitment of any Issuing Bank to act in its capacity as such cannot be extended beyond the Revolving Credit Commitment Termination Date (as such Extended Maturity Date is in effect at the Closing Date) or increased without its prior written consent.

(m) Existing Letters of Credit. Set forth on Schedule L-1 is a list of letters of credit that were originally issued by Bank of America under the Existing Credit Agreement and which remain outstanding on the Closing Date (the “Existing Letters of Credit”) (and setting forth, with respect to each such letter of credit, (i) the letter of credit number, (ii) the name(s) of the account party or account parties, (iii) the stated amount, (iv) the currency in which the letter of credit is denominated, (v) the name of the beneficiary and (vi) the expiry date. Notwithstanding anything to the contrary herein, if Bank of America becomes a Revolving Lender, each Existing Letter of Credit that is outstanding on such date, including any extension or renewal thereof, shall constitute a Letter of Credit for all purposes of this Agreement and shall be deemed issued for the account of the BorrowersBorrower on such date that Bank of America becomes a Revolving Lender.

 

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2.5 Pro Rata Shares; Availability of Funds.

(a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by the applicable Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that (i) the failure of any Lender to fund any such Loan shall not relieve any other Lender of its obligation hereunder and (ii) no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Term Loan Commitment or any Revolving Credit Commitment or any Incremental Term Loan Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.

(b) Availability of Funds. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Credit Extension that such Lender will not make available to the Administrative Agent such Lender’s share of such Credit Extension, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.2 and may, in reliance upon such assumption, make available to the BorrowersBorrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Credit Extension available to the Administrative Agent, then the applicable Lender and the BorrowersBorrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the BorrowersBorrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the applicable Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of a payment to be made by the BorrowersBorrower , the interest rate applicable to Base Rate Loans. If the BorrowersBorrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the BorrowersBorrower the amount of such interest paid by the BorrowersBorrower for such period. If such Lender pays its share of the applicable Credit Extension to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Credit Extension. Any payment by the BorrowersBorrower shall be without prejudice to any claim the BorrowersBorrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. Nothing in this Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments, Revolving Credit Commitments or Incremental Term Loan Commitments hereunder or to prejudice any rights that the BorrowersBorrower may have against any Lender as a result of any default by such Lender hereunder.

2.6 Use of Proceeds.

(a) The proceeds of the Term Loans shall be applied by the Borrower and the Released Borrowers on the Closing Date (i) to repay and discharge in full the Existing Indebtedness, (ii) to consummate the Closing Date Acquisition and the other Related Transactions and (iii) to pay fees and expenses in connection with the foregoing and this Agreement.

 

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(b) The proceeds of the Revolving Loans made and Letters of Credit issued on the Closing Date, if any, may be applied by the Borrower and the Released Borrowers to consummate the Closing Date Acquisition and the other Related Transactions, but shall be limited to (i) an amount necessary to provide back to back support for, or to replace, existing letters of credit, (ii) an amount by which the Estimated Net Working Capital exceeds the Target Net Working Capital Amount (each as defined in the Closing Date Acquisition Agreement as originally in effect) and (iii) any additional original issue discount or upfront fees with respect to the Loans hereunder imposed pursuant to the “Flex Provisions” of the Fee Letter.

(c) The BorrowersBorrower shall use the proceeds of any Credit Extension after the Closing Date for working capital and general corporate purposes, including Permitted Acquisitions, other Investments permitted hereunder, Capital Expenditures, associated costs and expenses and Restricted Payments permitted by Section 6.4.

(d) No portion of the proceeds of any Credit Extension shall be used in any manner that causes such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation thereof or to violate the Exchange Act.

(e) The BorrowersBorrower shall not request any Loan or Letter of Credit, nor use, and shall procure that its Restricted Subsidiaries and its or their respective directors, officers, employees, controlled Affiliates and agents not use, directly or indirectly, the proceeds of any Loan or Letter of Credit, or lend, contribute or otherwise make available such proceeds to any Restricted Subsidiary, other Affiliate, joint venture partner or other Person, (i) in violation of any Anti-Corruption Laws or AML Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or involving any goods originating in or with a Sanctioned Person or Sanctioned Country in each case in violation of Sanctions, or (iii) in any manner that would result in the violation of any Sanctions by such Person.

2.7 Evidence of Debt; Notes.

(a) Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Indebtedness of the BorrowersBorrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on the BorrowersBorrower , absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Credit Commitments or the Borrowers’Borrower’s Obligations in respect of any applicable Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

(b) Notes. If so requested by any Lender (or the Administrative Agent on behalf of such Lender) by written notice to the Borrower Representative (with a copy to the Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, the BorrowersBorrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after the Borrower Representative’sBorrower’s receipt of such notice) a Note or Notes to evidence such Lender’s applicable Loan.

2.8 Interest on Loans.

(a) Interest. Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made to the date of repayment thereof (whether by acceleration or otherwise) at an interest rate determined for the Class of such Loan equal to (i) in the case of any Swing Line Loan, the Base Rate, plus the Applicable Margin for Base Rate Loans, (ii) in the case of any Loan (other than a Swing Line Loan) denominated in Dollars, the Base Rate or the Adjusted Eurodollar Rate, plus, in each case, the Applicable Margin for the Type of such Loan and (iii) in the case of any Revolving Loan denominated in an Alternative Currency, the applicable Adjusted Eurodollar Rate, plus the Applicable Margin for Eurodollar Loans.

 

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(b) Interest Rate Election. The basis for determining the rate of interest with respect to any Loan and the Interest Period with respect to any Eurodollar Loan, shall be selected by the BorrowersBorrower and notified to the Administrative Agent pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be; provided that, (i) Swing Line Loans may only be made and maintained as Base Rate Loans, (ii) Loans (other than Swing Line Loans) that are denominated in Dollars may be made and maintained as Base Rate Loans or Eurodollar Loans, and (iii) Revolving Loans that are denominated in an Alternative Currency may only be made and maintained as Eurodollar Loans. If any Loan that is denominated in Dollars is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to the Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then such Loan shall be a Base Rate Loan.

(c) Interest Periods. In connection with Eurodollar Loans, there shall be no more than eight Interest Periods outstanding at any time (or such greater number as may be acceptable to the Administrative Agent in its sole discretion). If the Borrower Representative fails to specify whether a Loan should be a Base Rate Loan or a Eurodollar Loan in the applicable Funding Notice or Conversion/Continuation Notice, (x) such Loan (if outstanding as a Eurodollar Loan other than a Revolving Loan denominated in an Alternative Currency) will be automatically converted into a Base Rate Loan on the last day of then-current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan) or (y) such Loan, if a Revolving Loan denominated in an Alternative Currency, will continue as a Eurodollar Loan with an Interest Period of one month. If the Borrower Representative fails to specify an Interest Period for any Eurodollar Loan in the applicable Funding Notice or Conversion/Continuation Notice, the BorrowersBorrower shall be deemed to have selected an Interest Period of one month. On each Quotation Day, the Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to Eurodollar Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing) to the Borrower Representative and each Lender.

(d) Computation of Interest. Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate Loans determined by reference to clauses (i), (ii) and (iv) of the definition of Base Rate, on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of Base Rate Loans determined by reference to clause (iii) of the definition of Base Rate and all Eurodollar Loans, on the basis of a 360-day year, in each case, for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Loan, the date of conversion of such Eurodollar Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar Loan, the date of conversion of such Base Rate Loan to such Eurodollar Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.

(e) Interest Payable. Except as otherwise set forth herein, interest on each Loan shall accrue on a daily basis and be payable in arrears (i) on each Interest Payment Date applicable to that Loan; (ii) concurrently with any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) at maturity, including final maturity; provided, with respect to any voluntary prepayment of a Revolving Loan outstanding as a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date.

 

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(f) Interest on Letters of Credit. The Borrowers agree on a joint and several basisBorrower agrees to pay to the Administrative Agent for the benefit of the Issuing Bank, with respect to drawings honored under any Letter of Credit, interest on the amount paid by the Issuing Bank in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by or on behalf of the BorrowersBorrower at a rate equal to (i) for the period from the date such drawing is honored to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder with respect to (A) in the case of any Letter of Credit that is denominated in Dollars, Revolving Loans that are Base Rate Loans or (B) in the case of any Letter of Credit that is denominated in an Alternative Currency, Revolving Loans that are Eurodollar Loans and (ii) thereafter, a rate which is 2.00% per annum in excess of the rate of interest otherwise payable hereunder with respect to (A) in the case of any Letter of Credit that is denominated in Dollars, Revolving Loans that are Base Rate Loans or (B) in the case of any Letter of Credit that is denominated in an Alternative Currency, Revolving Loans that are Eurodollar Loans. Interest payable pursuant to this Section 2.8(f) shall be computed (x) in the case of interest accruing at the Base Rate determined by reference to clause (i), (ii) or (iv) of the definition of Base Rate, on the basis of a 365-day or 366-day year, as the case may be, and (x) in the case of interest accruing at the Base Rate determined by reference to clause (iii) of the definition of Base Rate and all interest accruing at the Eurodollar Rate, on the basis of a 360-day year, in each case, for the actual number of days elapsed in the period during which it accrues, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full. Promptly upon receipt by the Issuing Bank of any payment of interest pursuant to this Section 2.8(f), the Issuing Bank shall distribute to each Lender, out of the interest received by the Issuing Bank in respect of the period from the date such drawing is honored to but excluding the date on which the Issuing Bank is reimbursed for the amount of such drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Lender would have been entitled to receive in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period if no drawing had been honored under such Letter of Credit. In the event the Issuing Bank shall have been reimbursed by the Lenders for all or any portion of such honored drawing, the Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under Section 2.4(e) with respect to such honored drawing such Lender’s Pro Rata Share of any interest received by the Issuing Bank in respect of that portion of such honored drawing so reimbursed by the Lenders for the period from the date on which the Issuing Bank was so reimbursed by the Lenders to but excluding the date on which such portion of such honored drawing is reimbursed by the BorrowersBorrower .

2.9 Conversion and Continuation.

(a) Conversion. Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred and then be continuing, the BorrowersBorrower shall have the option to convert at any time all or any part of any Term Loan, Revolving Loan or Incremental Term Loan equal to $500,000 (or the Dollar Amount thereof in the case of a Revolving Loan) and integral multiples of $100,000 (or the Dollar Amount thereof in the case of a Revolving Loan) in excess of that amount from one Type of Loan to another Type of Loan; provided, that (i) a Eurodollar Loan may not be converted on a date other than the expiration date of the Interest Period applicable to such Eurodollar Loan unless the BorrowersBorrower shall pay all amounts due under Section 2.18 in connection with any such conversion and (ii) a Eurodollar Loan denominated in an Alternative Currency may not be converted into a Base Rate Loan.

(b) Continuation. Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred and then be continuing, the BorrowersBorrower shall also have the option, upon the expiration of any Interest Period applicable to any Eurodollar Loan, to continue all or any portion of such Loan equal to a Dollar Amount of $500,000 and integral multiples of a Dollar Amount of $100,000 in excess of that amount as a Eurodollar Loan.

 

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(c) Conversion/Continuation Notice. The Borrower Representative shall deliver a Conversion/Continuation Notice to the Administrative Agent at the Notice Office no later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and, other than in the case of the conversion set forth in the Specified Notice, at least three Business Days in advance of the proposed Conversion/Continuation Date (in the case of a conversion to, or a continuation of, a Eurodollar Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Loans shall be irrevocable on and after the date of receipt thereof by the Administrative Agent, and the BorrowersBorrower shall be bound to effect a conversion or continuation in accordance therewith.

2.10 Default Interest. Upon the occurrence and continuance of an Event of Default under any of Sections 8.1(a) (but, in the case of such Section 8.1(a), only in respect of principal, premium, interest, regularly accruing fees and unreimbursed amounts in respect of Letters of Credit), 8.1(f) or 8.1(g), the principal amount of all Loans and, to the extent permitted by applicable Law, any interest payments on the Loans or any fees or other amounts owed hereunder not paid when due, in each case whether at stated maturity, by notice of prepayment, by acceleration or otherwise, shall bear interest (including post-petition interest in any proceeding under any Debtor Relief Law) from the date of such Event of Default, payable on demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees (other than fees payable pursuant to Section 2.11(b)) and other amounts, at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for Revolving Loans outstanding as Base Rate Loans); provided, in the case of Eurodollar Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such Eurodollar Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for such Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.10 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender.

2.11 Fees.

(a) Commitment Fees. The Borrowers agree on a joint and several basisBorrower agrees to pay to the Lenders having Revolving Credit Exposure commitment fees equal to (i) the average of the daily difference between (A) the Revolving Credit Commitments, and (B) the sum of (1) the aggregate principal Dollar Amount of outstanding Revolving Loans (but not any outstanding Swing Line Loans), plus (2) the Letter of Credit Obligations, times (ii) 0.50%, per annum.

(b) Letter of Credit Fees. The Borrowers agree on a joint and several basisBorrower agrees to pay to the Administrative Agent for the benefit of the Lenders having Revolving Credit Exposure letter of credit fees equal to (i) the Applicable Margin for Revolving Loans that are Eurodollar Loans, times (ii) the average aggregate daily maximum Dollar Amount available to be drawn under all such Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination); provided, during any period during which default rate interest is applicable under Section 2.10, the percentage referred to in the foregoing clause (i) shall be the Applicable Margin for Revolving Loans that are Eurodollar Loans plus 2.00%, per annum.

 

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(c) Fronting Fees. The Borrowers agree on a joint and several basisBorrower agrees to pay directly to the Issuing Bank, for its own account, a fronting fee equal to (i) 0.125%, per annum, times (ii) the average aggregate daily maximum Dollar Amount available to be drawn under all Letters of Credit (determined as of the close of business on any date of determination).

(d) Documentary and Processing Charges. The Borrowers agree on a joint and several basisBorrower agrees to pay directly to the Issuing Bank, for its own account, such documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance with the Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be.

(e) Computation and Payment of Fees. All fees referred to in Sections 2.11(a), 2.11(b) and 2.11(c) shall be (i) calculated on the basis of a 360-day year and the actual number of days elapsed and (ii) payable quarterly in arrears on the last Business Day of each March, June, September and December of each year during the Revolving Credit Commitment Period, commencing on September 30, 2017, and on the Revolving Credit Commitment Termination Date.

(f) Payment to Lenders. All fees referred to in Sections 2.11(a) and 2.11(b) shall be paid when due to the Administrative Agent at the Payment Office and upon receipt thereof, the Administrative Agent shall promptly distribute to each Lender its Pro Rata Share thereof.

(g) Fees to the Lead Arrangers, Agents and Lenders. In addition to any of the foregoing fees, the Borrowers agree on a joint and several basisBorrower agrees to pay to the Lead Arrangers, the Administrative Agent, the Collateral Agent and the Lenders the fees set forth in the Fee Letter and the 2019 Incremental Fee Letter in accordance therewith and such other fees in the amounts and at the times separately agreed upon.

(h) Repricing Event. If the BorrowersBorrower in connection with any Repricing Event, (i) makes a prepayment of the Term Loans pursuant to Section 2.13(a) (with any replacement of a Non-Consenting Lender pursuant to Section 2.23 being deemed, for this purpose, to constitute a prepayment for this purpose), (ii) makes a prepayment of the Term Loans pursuant to Section 2.14(d) or (iii) effects any amendment with respect to the Term Loans, in each case, on or prior to the six-month anniversary of the Fifth Amendment Effective Date, the BorrowersBorrower shall pay to each Term Loan Lender (A) with respect to clauses (i) and (ii), a prepayment premium in an amount equal to 1.00% of the principal amount of the Term Loans held by such Term Loan Lender that are prepaid, and (B) with respect to clause (iii), a prepayment premium in an amount equal to 1.00% of the principal amount of the Term Loans held by such Term Loan Lender (including Term Loans held by any Non-Consenting Lender immediately prior to such Non-Consenting Lender being replaced pursuant to Section 2.23 immediately), regardless of whether such Term Loan Lender consented to such amendment. As used herein, “Repricing Event” means (x) any prepayment of the Term Loans, in whole or in part, with the proceeds of, or any conversion of the Term Loans into, any new or replacement tranche of term loans or debt Securities, in each case, with a Weighted Average Yield less than the Weighted Average Yield applicable to the Term Loans or (y) any amendment to this Agreement that reduces the Weighted Average Yield applicable to the Term Loans (in each case in clauses (x) and (y), other than in connection with a Qualified IPO, a Change of Control or a Transformative Acquisition).

2.12 Installments. The principal amounts of the Term Loans shall be repaid in installments (each, an “Installment”) in the aggregate amounts set forth below on the date correlative thereto (each, an “Installment Date”); provided that, (x) Installments with respect to any Series of Incremental Term Loans shall be paid in accordance with the terms set forth in the applicable Joinder Agreement, (y) Installments with respect to any Series of Extended Term Loans shall be paid in accordance with the terms set forth in the applicable Extension Amendment and (z) Installments with respect to any Other Term Loans shall be paid in accordance with the terms set forth in the applicable Refinancing Amendment:

 

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Installment Date

   Installment

December 31, 2019

   $1,192,765.72

March 31, 2020

   $1,192,765.72

June 30, 2020

   $1,192,765.72

September 30, 2020

   $1,192,765.72

December 31, 2020

   $1,192,765.72

March 31, 2021

   $1,192,765.72

June 30, 2021

   $1,192,765.72

September 30, 2021

   $1,192,765.72

December 31, 2021

   $1,192,765.72

March 31, 2022

   $1,192,765.72

June 30, 2022

   $1,192,765.72

September 30, 2022

   $1,192,765.72

December 31, 2022

   $1,192,765.72

March 31, 2023

   $1,192,765.72

June 30, 2023

   $1,192,765.72

September 30, 2023

   $1,192,765.72

December 31, 2023

   $1,192,765.72

March 31, 2024

   $1,192,765.72

June 30, 2024

   $1,192,765.72

Term Loan Maturity Date:

   Remaining principal amount
of outstanding Term Loans

Notwithstanding the foregoing, (a) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Term Loans in accordance with Sections 2.13, 2.14 and 10.6(k), as applicable, and (b) the Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Term Loan Maturity Date with respect thereto. If such Installment Date is not a Business Day, then the Installment Date shall be the immediately preceding Business Day.

 

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2.13 Voluntary Prepayments/Commitment Reductions.

(a) Voluntary Prepayments. Any time and from time to time, with respect to any Type of Loan, the BorrowersBorrower may prepay, without premium or penalty (but subject to Sections 2.11(h) and 2.18(c)), any Loan on any Business Day in whole or in part, in an aggregate minimum amount of and integral multiples in excess of that amount, and upon prior written as set forth in the following table:

 

Class of Loans

   Minimum Dollar
Amount
     Integral Multiple
Dollar Amount
     Prior Notice

Base Rate Loans (other than Swing Line Loans)

   $ 500,000      $ 100,000      One Business Day

Eurodollar Loans

   $ 500,000      $ 100,000      Three Business
Days

Swing Line Loans

   $ 100,000      $ 100,000      Same Day

in each case, given to the Administrative Agent or the Swing Line Lender, as the case may be, by 12:00 noon (New York City time) on the date required (and the Administrative Agent will promptly transmit such notice for Term Loan, Revolving Loans or Incremental Term Loans, as the case may be, by telefacsimile or e-mail to each applicable Lender) or the Swing Line Lender, as the case may be. Upon the giving of any such notice, the principal Dollar Amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein; provided, such prepayment obligation may be conditioned on the occurrence of any subsequent event (including a Change of Control or refinancing transaction).

(b) Voluntary Commitment Reductions.

The BorrowersBorrower may, upon not less than three Business Days’ prior written notice to the Administrative Agent (which such notice the Administrative Agent will promptly transmit by telefacsimile or e-mail to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Credit Commitments in an amount up to the amount by which the Revolving Credit Commitments exceed the Total Utilization of Revolving Credit Commitments at the time of such proposed termination or reduction; provided, any such partial reduction of the Revolving Credit Commitments shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount. The Borrowers’Borrower’s notice to the Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Credit Commitments shall be effective on the date specified in the Borrowers’Borrower’s notice and shall reduce the Revolving Credit Commitment of each Lender proportionately to its Pro Rata Share thereof; provided, such commitment reduction notice may be conditioned on the occurrence of any subsequent event (including a Change of Control or refinancing transaction).

2.14 Mandatory Prepayments/Commitment Reductions.

(a) Asset Sales. No later than the fifth Business Day following the date of receipt by Holdings, anythe Borrower or any of the Restricted Subsidiaries of any Net Asset Sale Proceeds received pursuant to Section 6.9(h), 6.9(i), 6.9(j) or 6.9(p) in excess of (i) with respect to a single transaction or series of related transactions, $2,000,000 or (ii) $5,000,000 in the aggregate in any Fiscal Year, the BorrowersBorrower shall prepay the Loans and/or certain other Obligations as set forth in Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Event of Default shall have occurred and be continuing, the BorrowersBorrower shall have the option, directly or through one or more of the Restricted Subsidiaries, to invest such Net Asset Sale Proceeds within 365 days of receipt thereof in productive assets (other than working capital assets) useful in businesses not prohibited

 

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under Section 6.12; provided further, (x) if athe Borrower or a Restricted Subsidiary enters into a legally binding commitment (and has provided the Administrative Agent a copy of such binding commitment) to invest such Net Asset Sale Proceeds within such 365-day period, such 365-day period shall extend by an additional 180-day period and (y) if all or any portion of such Net Asset Sale Proceeds are not so reinvested (and/or committed to be reinvested and then actually reinvested) within the time period set forth above in this Section 2.14(a), such remaining portion shall be applied not later than the last day of such period (or any earlier date on which Holdingsthe Borrower or such Restricted Subsidiary determines not to so reinvest such Net Asset Sale Proceeds) as provided above in this Section 2.14(a) without regard to this proviso or the immediately preceding proviso.

(b) Insurance/Condemnation Proceeds. No later than the fifth Business Day following the date of receipt by Holdings, anythe Borrower or any of the Restricted Subsidiaries, or the Administrative Agent as lender loss payee, of any Net Insurance/Condemnation Proceeds in excess of $1,000,000 in the aggregate in any Fiscal Year, the BorrowersBorrower shall prepay the Loans and/or certain other Obligations as set forth in Section 2.15(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, so long as no Event of Default shall have occurred and be continuing, the BorrowersBorrower shall have the option, directly or through one or more of the Restricted Subsidiaries to invest such Net Insurance/Condemnation Proceeds within 365 days of receipt thereof (x) to repair, restore or replace damaged property or property affected by loss, destruction, damage, condemnation, confiscation, requisition, seizure or taking and/or (y) in productive assets (other than working capital assets) useful in businesses not prohibited under Section 6.12, which investment may include the repair, restoration or replacement of the applicable assets thereof; provided further, (x) if the BorrowersBorrower or a Restricted Subsidiary enters into a legally binding commitment (and have provided the Administrative Agent with a copy of such binding commitment) to invest such Net Insurance/Condemnation Proceeds within such 365-day period, such 365-day period shall extend by an additional 180-day period and (y) if all or any portion of such Net Insurance/Condemnation Proceeds are not so reinvested (and/or committed to be reinvested and then actually reinvested) within the time period set forth above in this Section 2.14(b), such remaining portion shall be applied not later than the last day of such period (or any earlier date on which Holdingsthe Borrower or such Restricted Subsidiary determines not to so reinvest such Net Insurance/Condemnation Proceeds) as provided above in this Section 2.14(b) without regard to this proviso or the immediately preceding proviso.

(c) [Reserved].

(d) Issuance of Debt. No later than the fifth Business Day following receipt of cash proceeds from the incurrence of any Indebtedness by Holdings, anythe Borrower or any of the Restricted Subsidiaries (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1 (other than Section 6.1(r) (in respect of the Loans) or pursuant to Section 2.26), the BorrowersBorrower shall prepay the Loans and/or certain other Obligations as set forth in Section 2.15(b) in an aggregate amount equal to 100% of the cash proceeds from such incurrence, net of any underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.

(e) Consolidated Excess Cash Flow. If there shall be Consolidated Excess Cash Flow for any Fiscal Year beginning with the Fiscal Year ending December 31, 2018, the BorrowersBorrower shall, within ten Business Days of the date on which the Borrowers areBorrower is required to deliver the financial statements of Holdingsthe Borrower and its Restricted Subsidiaries pursuant to Section 5.1(b), prepay the Loans and/or certain other Obligations as set forth in Section 2.15(b) in an aggregate amount equal to (i) 50% of such Consolidated Excess Cash Flow minus (ii) voluntary prepayments of the Loans made during such Fiscal Year (excluding repayments of Revolving Loans or Swing Line Loans except to the extent the Revolving Credit Commitments are permanently reduced in connection with such

 

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repayments) paid from Internally Generated Cash (provided that such reduction as a result of prepayments made pursuant to Section 10.6(k) shall be limited to the actual amount of cash used to prepay principal of Term Loans (as opposed to the face amount thereof)); provided, if, as of the last day of the most recently ended Fiscal Year, the Consolidated Total Net Leverage Ratio (determined for such Fiscal Year by reference to the Compliance Certificate delivered pursuant to Section 5.1(c) calculating the Consolidated Total Net Leverage Ratio as of the last day of such Fiscal Year) shall be (A) less than or equal to 4.50:1.00 but greater than 4.00:1.00, the BorrowersBorrower shall only be required to make the prepayments and/or reductions otherwise required hereby in an amount equal to (1) 25% of such Consolidated Excess Cash Flow minus (2) voluntary repayments of the Loans made during such Fiscal Year (excluding repayments of Revolving Loans or Swing Line Loans except to the extent the Revolving Credit Commitments are permanently reduced in connection with such repayments) paid from Internally Generated Cash (provided that such reduction as a result of prepayments made pursuant to Section 10.6(k) shall be limited to the actual amount of cash used to prepay principal of Term Loans (as opposed to the face amount thereof)) and (B) less than or equal to 4.00:1.00, the BorrowersBorrower shall not be required to make the prepayments and/or reductions otherwise required by this Section 2.14(e).

(f) Revolving Credit Limit. The BorrowersBorrower shall from time to time prepay first, the Swing Line Loans, and second, the Revolving Loans to the extent necessary so that the Total Utilization of Revolving Credit Commitments shall not at any time exceed the Revolving Credit Limit then in effect (other than to the extent such excess is due to currency fluctuations, which shall be governed by Section 2.28).

(g) Qualified Borrower IPO Prepayment. No later than the fifth Business Day following the consummation of the Qualified Borrower IPO, the Borrower and/or the Released Borrowers shall prepay the Loans in an amount (the “Mandatory 1L IPO Prepayment Amount”) equal to 50% of the positive difference between (x) the aggregate amount of the net cash proceeds received by (or contributed to) the U.S. Borrower from the Qualified Borrower IPO, minus, (y) the Permitted 2L IPO Prepayment Amount (for the avoidance of doubt, it is understood and agreed that any prepayment of the Loans pursuant to this clause (g) shall not constitute a Repricing Event).

(h) Prepayment Certificate. Concurrently with any prepayment of the Loans and/or certain other Obligations pursuant to Sections 2.14(a) through 2.14(f), the BorrowersBorrower shall deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower Representative demonstrating the calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow, as the case may be. If the BorrowersBorrower subsequently determinedetermines that the actual amount received exceeded the amount set forth in such certificate, the BorrowersBorrower shall promptly (but in any event within three Business Days) make an additional prepayment of the Loans and/or certain other obligations in an amount equal to such excess, and the BorrowersBorrower shall concurrently therewith deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower Representative demonstrating the derivation of such excess.

(i) Constraints on Upstreaming. Notwithstanding any other provisions of this Section 2.14, all prepayments referred to in Sections 2.14(a) through 2.14(e) attributable to any Foreign Subsidiary are subject to permissibility under local law (e.g., financial assistance, thin capitalization, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant subsidiaries). Further, there will be no requirement to make any prepayment to the extent that Holdingsthe Borrower or its Restricted Subsidiaries would suffer material adverse costs or tax consequences as a result of upstreaming cash to make such prepayments (including the imposition of withholding taxes) (as determined by the Borrower Representative in good faith). The non-application of any such prepayment amounts as a result of the foregoing provisions will not constitute an Event of Default and such amounts shall be available to repay local foreign indebtedness, if any, and for working

 

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capital purposes of the applicable Foreign Subsidiary. The BorrowersBorrower and each Foreign Subsidiary will undertake to use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment (subject to the considerations above) to make the relevant prepayment (all as determined in accordance with the Borrowers’Borrower’s reasonable business judgment). Notwithstanding the foregoing, any prepayments required after application of the above provision shall be net of any costs, expenses or taxes incurred by Holdings (or its direct or indirect members) or the Borrowersthe Borrower and the Restricted Subsidiaries and arising as a result of compliance with the preceding sentence, and the BorrowersBorrower and the Restricted Subsidiaries shall be permitted to make, directly or indirectly, dividends or distributions to their Affiliates in an amount sufficient to cover such tax liability, costs or expenses. For the avoidance of doubt, nothing in this Agreement (including this Section 2.14) shall require the BorrowersBorrower or any of the Restricted Subsidiaries to cause any amounts to be repatriated, whether directly or indirectly, and whether such repatriation is actual or deemed under Section 956 of the Code, to the United States (whether or not such amount are used in or excluded from the determination of the amount of any mandatory prepayment hereunder).

2.15 Application of Prepayments.

(a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan pursuant to Section 2.13(a) shall be applied as specified by the BorrowersBorrower in the applicable notice of prepayment; provided, any such prepayment of the Term Loans, the Incremental Term Loans, the Extended Term Loans and the Other Term Loans shall be applied (x) to prepay the Term Loans, the Incremental Term Loans, the Extended Term Loans and the Other Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) (unless any Lenders under any such Class incurred after the Closing Date elect to be prepaid on a less than ratable basis) and (y) to the remaining Installments of principal of the Term Loans, the Extended Term Loans, the Other Term Loans and the Incremental Term Loans as directed by the BorrowersBorrower (or, in the absence of such direction, in direct order of maturity). If the Borrowers failBorrower fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied as follows:

first, to repay outstanding Swing Line Loans to the full extent thereof;

second, to repay outstanding Revolving Loans to the full extent thereof; and

third, to prepay the Term Loans, the Extended Term Loans, the Other Term Loans and the Incremental Term Loans on a pro rata basis (unless any Lenders under any Extended Term Loans, Other Term Loans or Incremental Term Loans have elected to be paid on a less than ratable basis), and shall be further applied on a pro rata basis to the first eight remaining Installments of principal of the Term Loans, the Extended Term Loans, the Other Term Loans and the Incremental Term Loans in direct order of maturity, and then on a pro rata basis to all such remaining Installments.

(b) Application of Mandatory Prepayments by Type of Loans. Subject to Section 2.15(d), any amount required to be paid pursuant to Sections 2.14(a) through 2.14(e) shall be applied:

first, to prepay the Term Loans, the Extended Term Loans, the Other Term Loans and the Incremental Term Loans on a pro rata basis (unless any Lenders under any such Extended Term Loans, Other Term Loans or Incremental Term Loans have elected to be paid on a less than ratable basis) in the direct order of maturity to the next eight scheduled Installments of principal of the Term Loans, the Extended Term Loans, the Other Term Loans and the Incremental Term Loans, and thereafter, on a pro rata basis to the remaining Installments of principal of the Term Loans, the Extended Term Loans, the Other Term Loans and the Incremental Term Loans, respectively;

 

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second, to prepay the Swing Line Loans to the full extent thereof (without any reduction to the Revolving Credit Commitments);

third, to prepay the Revolving Loans to the full extent thereof (without any reduction to the Revolving Credit Commitments);

fourth, to prepay outstanding reimbursement obligations with respect to Letters of Credit (without any reduction to the Revolving Credit Commitments); and

fifth, to Cash Collateralize all Letters of Credit in accordance with Section 2.4(h) (without any reduction to the Revolving Credit Commitments).

Notwithstanding anything to the contrary set forth above in this Section 2.15(b), (i) the net cash proceeds from the incurrence of any Credit Agreement Refinancing Indebtedness shall be applied as provided in the definition thereof and, if applicable, Section 2.26 and (ii) the Mandatory 1L IPO Prepayment Amount shall be applied on a ratable basis to prepay the Term Loans, the Extended Term Loans, the Other Term Loans and the Incremental Term Loans in accordance with clause “first” of Section 2.15(b).

(c) Application of Prepayments of Loans to Types of Loans. Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Loans, in each case in a manner which minimizes the amount of any payment required to be made by the BorrowersBorrower pursuant to Section 2.18(c).

(d) Waivable Mandatory Prepayment. Anything contained herein to the contrary notwithstanding, so long as any Loans (other than Revolving Loans) are outstanding, if the Borrowers areBorrower is required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Loans (other than Revolving Loans) (other than pursuant to Section 2.14(d)), not less than three Business Days prior to the date (the “Required Prepayment Date”) on which the Borrowers areBorrower is required to make such Waivable Mandatory Prepayment, the Borrower Representative shall notify the Administrative Agent of the amount of such prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding outstanding Term Loans, Extended Term Loans, Incremental Term Loans or Other Term Loans of the amount of such Lender’s Pro Rata Share of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to the Administrative Agent (who shall notify the Borrower Representative of the aggregate amount of Retained Declined Proceeds prior to the Required Prepayment Date) of its election to do so on or before 12:00 p.m. (New York City time) on the first Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify the Borrower Representative and the Administrative Agent of its election to exercise such option on or before the first Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). To the extent anyThe Borrower shall retain that amount of the Waivable Mandatory Prepayment with respect to which each Lender, if any, shall have exercised its option to refuse is not required to be applied to repay the Second Lien Term Facility Indebtedness, then the Borrowers may retain such amount (any such amount retained by the BorrowersBorrower , the “Retained Declined Proceeds”).

2.16 General Provisions Regarding Payments.

(a) Payments Due. All payments by the BorrowersBorrower of principal, interest, fees and other Obligations shall be made without defense, setoff or counterclaim, and free of any restriction or condition. Except with respect to Obligations that are funded and expressly denominated in an Alternative Currency, which shall be repaid in such Alternative Currency (or, to the extent expressly set forth herein, in the Dollar Amount thereof), all payments by the BorrowersBorrower shall be made in

 

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Dollars in same day funds and delivered to the Administrative Agent not later than 1:00 p.m. (New York City time) on the date due at the Payment Office for the account of the Lenders. All payments by the BorrowersBorrower required to be made in an Alternative Currency shall be made in such Alternative Currency in same day funds and delivered to the Administrative Agent not later than 1:00 p.m. (New York City time) on the date due at the Payment Office for the account of the Lenders; provided that, if for any reason, the Borrowers areBorrower is prohibited by applicable Laws from making any required payment hereunder in an Alternative Currency, the BorrowersBorrower shall make such payment in Dollars in the Dollar Amount of the Alternative Currency payment amount. For purposes of computing interest and fees, any funds received by the Administrative Agent after the time on such due date specified in this Section 2.16(a) may, in the discretion of the Administrative Agent, be deemed to have been paid by the BorrowersBorrower on the next succeeding Business Day.

(b) Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the BorrowersBorrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the BorrowersBorrower will not make such payment, the Administrative Agent may assume that the BorrowersBorrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers haveBorrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Bank, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of (x) the applicable Overnight Rate and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(c) Payments to Include Interest. All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Revolving Loans) shall include payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest then due and payable before application to principal.

(d) Distribution of Payments. The Administrative Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by the Administrative Agent.

(e) Affected Lender. Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Loans, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.

(f) Payment Due on Non-Business Day. Subject to the provisos set forth in the definition of “Interest Period”, whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the Revolving Credit Commitment fees hereunder.

(g) Borrower’s Accounts. The BorrowersBorrower hereby authorizeauthorizes the Administrative Agent to charge the Borrowers’Borrower’s accounts with the Administrative Agent in order to cause timely payment to be made to the Administrative Agent of all principal, interest, fees and expenses due hereunder (subject to sufficient funds being available in its accounts for that purpose).

 

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(h) Non-Conforming Payment. If any payment by or on behalf of the BorrowersBorrower hereunder is not made in same day funds prior to 1:00 p.m. (New York City time), the Administrative Agent may deem such payment to be a non-conforming payment and if so, shall give prompt notice thereof to the Borrower Representative and each applicable Lender. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from the date such amount was due and payable until the date such amount is paid in full.

2.17 Ratable Sharing. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of, premium, if any, or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its Pro Rata Share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section 2.17 shall not be construed to apply to (A) any payment made by the BorrowersBorrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letters of Credit to any assignee or Participant, other than to the BorrowersBorrower or any of the Restricted Subsidiaries (as to which the provisions of this Section shall apply). Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.

2.18 Making or Maintaining Eurodollar Loans.

(a) Inability to Determine Applicable Interest Rate. (i) Notwithstanding anything to the contrary in this Agreement or any other Credit Document, if the Administrative Agent in consultation with the Borrower Representative reasonably determines (which determination by the Administrative Agent shall be conclusive absent manifest error) that:

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

 

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

(z) syndicated loans currently being executed, or that include language similar to that contained in this Section 2.18(a), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Adjusted Eurodollar Rate, the Eurodollar Rate and/or the Screen Rate, as applicable,

then, reasonably promptly after such determination by the Administrative Agent, the Administrative Agent and the BorrowersBorrower may amend this Agreement to replace the Adjusted Eurodollar Rate, the Eurodollar Rate and/or the Screen Rate, as applicable, with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “Successor Eurodollar Rate”), together with any proposed Successor Eurodollar Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower Representative unless, prior to such time, the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment. Such Successor Eurodollar Rate 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 Successor Eurodollar Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

(ii) If no Successor Eurodollar Rate has been determined and the circumstances under clause (a)(x) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly notify the Borrower Representative and each Lender. Thereafter, (x) the obligations of the Lenders to make or maintain Eurodollar Loans or convert any Loans into Eurodollar Loans, in each case, shall be suspended (to the extent of the affected Eurodollar Loans or Interest Periods) and (y) the Adjusted Eurodollar Rate component shall no longer be utilized in determining the Base Rate. Upon receipt of such notice, the Borrower Representative may revoke any pending Funding Notice and/or Conversion/Continuation Notice (to the extent of the affected Eurodollar Loans or Interest Periods) or, failing that, will be deemed to have converted such request in any such notice into a request for a committed borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.

(iii) Notwithstanding anything else herein, any definition of Successor Eurodollar Rate shall provide that in no event shall such Successor Eurodollar Rate be less than 1.00% per annum for purposes of this Agreement.

 

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(b) Illegality or Impracticability of Eurodollar Loans. If on any date any Lender (in the case of clause (i) below) or the Required Lenders (in the case of clause (ii) below) shall have determined in good faith (which determination shall be final and conclusive and binding upon all parties hereto, absent manifest error) that the making, maintaining or continuation of its Eurodollar Loans (whether denominated in Dollars or an Alternative Currency) (i) has become unlawful as a result of compliance by such Lender in good faith with any Law (or would conflict with any treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii)(A) the Eurodollar Rate for the applicable Interest Period will not adequately or fairly reflect the cost to such Lenders of making or maintaining Eurodollar Loans for the subject Interest Period or (B) it has otherwise become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the applicable interbank market or the position of the Lenders in that market, then, and in any such event, the affected Lenders shall each be an “Affected Lender” and it shall on that day give notice (by e-mail, facsimile or by telephone confirmed in writing) to the Borrower Representative and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each other Lender). If the Administrative Agent receives a notice from (A) any Lender pursuant to clause (i) of the preceding sentence or (B) a notice from Lenders constituting Required Lenders pursuant to clause (ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) to make Loans as, or to convert Loans to, Eurodollar Loans shall be suspended until such notice shall be withdrawn by each Affected Lender, (2) to the extent such determination by the Affected Lender relates to a Eurodollar Loan denominated in Dollars then being requested by the BorrowersBorrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Lenders’ (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender’s) obligations to maintain their respective outstanding Eurodollar Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by Law, (4) if the Affected Loans are denominated in Dollars, such Affected Loans shall automatically convert into Base Rate Loans on the date of such termination and (5) if the Affected Loans are denominated in an Alternative Currency, the interest rate with respect to such Affected Loans shall be determined by an alternative rate mutually acceptable to the BorrowersBorrower and applicable Affected Lenders on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Eurodollar Loan then being requested by the Borrower Representative pursuant to a Funding Notice or a Conversion/Continuation Notice, the BorrowersBorrower shall have the option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving written notice to the Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission the Administrative Agent shall promptly transmit to each other Lender).

(c) Compensation for Breakage or Non Commencement of Interest Periods. The BorrowersBorrower shall compensate each Lender, upon written request by such Lender through the Administrative Agent (which request shall set forth the basis for requesting such amounts and shall be conclusive and binding in the absence of manifest error), for all reasonable losses, expenses and liabilities (including any interest paid or payable by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any Eurodollar Loan does not occur on a date specified therefor in a Funding Notice, or a conversion to or continuation of any Eurodollar Loan does not occur on a date specified therefor in a Conversion/Continuation Notice; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Eurodollar Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Loans is not made on any date specified in a notice of prepayment given by the BorrowersBorrower .

 

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(d) Booking of Eurodollar Loans. Any Lender may make, carry or transfer Eurodollar Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.

(e) Assumptions Concerning Funding of Eurodollar Loans. Calculation of all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such Lender had actually funded each of its relevant Eurodollar Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to the definition of Eurodollar Base Rate in an amount equal to the amount of such Eurodollar Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, each Lender may fund each of its Eurodollar Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.18 and under Section 2.19.

2.19 Increased Costs; Capital Adequacy.

(a) Increased Costs Generally. If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate) or the Issuing Bank;

(ii) subject any Lender or the Issuing Bank to any Taxes (other than Indemnified Taxes and Excluded Taxes) on its Loans, Letters of Credit, Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the Issuing Bank, the BorrowersBorrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.

(b) Capital Requirements. If any Lender or the Issuing Bank determines in good faith that any Change in Law affecting such Lender or the Issuing Bank or any lending office of such Lender or such Lender’s or the Issuing Bank’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company would have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy), then from time to time the BorrowersBorrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.

 

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(c) Certificates for Reimbursement. A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in Section 2.19(a) or 2.19(b) and delivered to the Borrower Representative, shall be conclusive absent manifest error. The BorrowersBorrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate and owing under Section 2.19(a) or Section 2.19(b) within ten Business Days after receipt thereof.

(d) Delay in Requests. Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided, the BorrowersBorrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the BorrowersBorrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e) If any Lender reasonably determines that as a result of the introduction of or any change in or in the interpretation of any Laws, in each case, after the date hereof, or such Lender’s compliance therewith, disruption of currency or foreign exchange markets, war or civil disturbance or similar event, the funding of any Loan in any Alternative Currency or the funding of any Loan in any Alternative Currency to an office located other than in New York shall be impossible or, in the reasonable judgment of the applicable Lender such Alternative Currency is no longer available or readily convertible into Dollars, or the Dollar Amount of such Alternative Currency is no longer readily calculable, then, at the election of such Lender, such Lender shall make the Dollar Amount of such Loan available in Dollars or any Loan in the relevant Alternative Currency by such Lender shall be made to an office of the Administrative Agent located in New York, as the case may be, until such time as, in the reasonable judgment of such Lender, the funding of Loans in the relevant Alternative Currency is possible, the funding of Loans in the relevant Alternative Currency to an office located other than in New York is possible, the relevant Alternative Currency is available and readily convertible into Dollars or the Dollar Amount of such Alternative Currency is readily calculable, as applicable.

(f) If payment in respect of any Loan denominated in an Alternative Currency shall be due in a currency other than Dollars and/or at a place of payment other than New York and if, by reason of the introduction of or any change in or in the interpretation of any Law subsequent to the Closing Date, disruption of currency or foreign exchange markets, war or civil disturbance or similar event, payment of such Obligations in such currency or such place of payment shall be impossible or, in the reasonable judgment of an applicable Lender, such Alternative Currency is no longer available or readily convertible to Dollars, or the Dollar Amount of such Alternative Currency is no longer readily calculable, then, at the election of any affected Lender, the BorrowersBorrower shall make payment of such Loan in Dollars (based upon the Exchange Rate in effect for the day on which such payment occurs, as determined by the Administrative Agent in accordance with the terms hereof) and/or in New York.

 

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2.20 Taxes; Withholding, Etc.

(a) Defined Terms. For purposes of this Section 2.20, the term “Lender” includes the Issuing Bank and the term “applicable law” includes FATCA.

(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c) Payment of Other Taxes by the BorrowersBorrower. The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(d) Indemnification by the BorrowersBorrower. Without duplication of any additional amounts paid under this Section 2.20, the Credit Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.20) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Holdingsthe Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(f) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were 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. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.20, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

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(g) Status of Lenders.

(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower Representative and the Administrative Agent, at the time or times reasonably requested by the BorrowersBorrower or the Administrative Agent and at the time or times prescribed by applicable Laws, such properly completed and executed documentation reasonably requested by the BorrowersBorrower or the Administrative Agent or prescribed by applicable Laws as will permit (A) such payments to be made without withholding or at a reduced rate of withholding, or (B) will permit the BorrowersBorrower or the Administrative Agent to otherwise establish such Lender’s status for withholding Tax purposes in an applicable jurisdiction. In addition, any Lender, if reasonably requested by the Borrower Representative or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the BorrowersBorrower or the Administrative Agent as will enable the BorrowersBorrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.20(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing,

(A) any Lender that is a U.S. Person shall deliver to Holdingsthe Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the BorrowersBorrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the BorrowersBorrower or the Administrative Agent), whichever of the following is applicable:

(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii) executed copies of IRS Form W-8ECI;

 

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(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of athe Borrower or Holdings within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(iv) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the BorrowersBorrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the BorrowersBorrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Credit 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 Representative and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the BorrowersBorrower 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 BorrowersBorrower or the Administrative Agent as may be necessary for the BorrowersBorrower 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 clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Holdingsthe Borrower and the Administrative Agent in writing of its legal inability to do so.

 

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(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including by the payment of additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party 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 paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i) Survival. Each party’s obligations under this Section 2.20 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

2.21 Obligation to Mitigate. If any Lender requests compensation under Section 2.19, or requires a Credit Party to pay additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20, then such Lender shall (at the request of the relevant Credit Party) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate or reduce amounts payable pursuant to Section 2.19 or 2.20, as the case may be, in the future, and (b) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. The BorrowersBorrower hereby agreeagrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

2.22 Defaulting Lenders.

(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i) Waivers and Amendments. Such 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 the definition of Required Lenders.

(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.4 shall be applied at such time or times as may be determined by the Administrative Agent

 

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as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Bank or Swing Line Lender hereunder; third, to Cash Collateralize the Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.4(i); fourth, as the BorrowersBorrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.4(i); sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the BorrowersBorrower as a result of any judgment of a court of competent jurisdiction obtained by the BorrowersBorrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, if (x) such payment is a payment of the principal amount of any Loans or Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Line Loans are held by the Lenders in accordance with their Pro Rata Shares of the Revolving Credit Commitments without giving effect to Section 2.22(a)(iv). 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 2.22(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees.

(A) No Defaulting Lender shall be entitled to receive any commitment fees in accordance with Section 2.11(a) for any period during which such Lender is a Defaulting Lender (and the BorrowersBorrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(B) Each Defaulting Lender shall be entitled to receive Letter of Credit fees in accordance with Section 2.11(b) for any period during which such Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.4(i).

 

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(C) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the BorrowersBorrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Bank and the Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Bank’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Letter of Credit Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from such Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v) Repayment of Swing Line Loans, Cash Collateral. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the BorrowersBorrower shall, without prejudice to any right or remedy available to it hereunder or under law, first, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and second, Cash Collateralize the Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 2.4(i).

(b) Defaulting Lender Cure. If the BorrowersBorrower , the Administrative Agent and the Swing Line Lender and the Issuing Bank agree in writing that a Lender is no longer 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), such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held by the Lenders in accordance with their Pro Rata Shares of the Revolving Credit Commitments without giving effect to Section 2.22(a)(iv), whereupon such Lender will cease to be a Defaulting Lender; provided, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the BorrowersBorrower while such Lender was a Defaulting Lender; and provided further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

(c) New Swing Line Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) the Issuing Bank shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

 

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(d) Termination of Defaulting Lender. The BorrowersBorrower may terminate the unused amount of the Revolving Credit Commitment of any Revolving Lender that is a Defaulting Lender upon not less than five Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.22(a)(ii) will apply to all amounts thereafter paid by the BorrowersBorrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided, (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the BorrowersBorrower, the Administrative Agent, the Issuing Bank, the Swing Line Lender or any Lender may have against such Defaulting Lender.

2.23 Replacement Lenders. If any Lender requests compensation under Section 2.19, or if the Borrowers areBorrower is required to pay additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 2.21, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the BorrowersBorrower may, at theirits sole expense and effort, upon notice to such Lender and the Administrative Agent (which shall be given within thirty days after such Lender requests such amount or becomes a Defaulting Lender or Non-Consenting Lender, as the case may be), require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.6), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.19 or Section 2.20) and obligations under this Agreement and the related Credit Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided:

(a) the Administrative Agent shall have received the assignment fee (if any) specified in Section 10.6(b)(iv);

(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in Letters of Credit, accrued interest thereon, accrued fees, premium (if any) and all other amounts payable to it hereunder and under the other Credit Documents (including any amounts under Section 2.18(c) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the BorrowersBorrower (in the case of all other amounts));

(c) in the case of any such assignment resulting from a claim for compensation under Section 2.19 or payments required to be made pursuant to Section 2.20, such assignment will result in a reduction in such compensation or payments thereafter;

(d) such assignment does not conflict with applicable Law; and

(e) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent;

provided further, a Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the BorrowersBorrower to require such assignment and delegation cease to apply.

2.24 Extension of Loans.

(a) The BorrowersBorrower may from time to time, pursuant to the provisions of this Section 2.24, agree with one or more Lenders holding Loans of any Class to extend the maturity date, and otherwise modify the economic terms of any such Class or any portion thereof (including, without limitation, by increasing the interest rate or fees payable and/or modifying the amortization schedule in respect of any Loans of such Class or any portion thereof) (each such modification an “Extension”) pursuant to one or more written offers (each an “Extension Offer”) made from time to time by the

 

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BorrowersBorrower to all Lenders under any Class that is proposed to be extended under this Section 2.24, in each case on a pro rata basis (based on the relative principal amounts of the outstanding Loans of each Lender in such Class) and on the same terms to each such Lender. In connection with each Extension, the Borrower Representative will provide notification to the Administrative Agent (for distribution to the Lenders of the applicable Class), no later than ninety days prior to the maturity of the applicable Class or Classes to be extended of the requested new maturity date for the extended Loans of each such Class (each an “Extended Maturity Date”) and the due date for Lender responses. In connection with any Extension, each Lender of the applicable Class wishing to participate in such Extension shall, prior to such due date, provide the Administrative Agent with a written notice thereof in a form reasonably satisfactory to the Administrative Agent. Any Lender that does not respond to an Extension Offer by the applicable due date shall be deemed to have rejected such Extension. After giving effect to any Extension, the Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans so extended shall cease to be a part of the Class they were a part of immediately prior to the Extension and shall be a new Class hereunder; provided that subject to the provisions of Sections 2.3(k) and 2.4(l) to the extent dealing with Swing Line Loans and Letters of Credit which mature or expire after a maturity date when there exist Revolving Credit Commitments which have been extended pursuant to this Section 2.24 (“Extended Revolving Credit Commitments”) with a longer maturity date, all Swing Line Loans and Letters of Credit shall be participated in on a pro rata basis by all Lenders with Revolving Credit Commitments and Extended Revolving Credit Commitments in accordance with their Pro Rata Share of the Revolving Credit Commitments and Extended Revolving Credit Commitments (and except as provided in Sections 2.3(k) and 2.4(l), without giving effect to changes thereto on an earlier maturity date with respect to Swing Line Loans and Letters of Credit theretofore incurred or issued) and all borrowings under Revolving Credit Commitments and Extended 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).

(b) Each Extension shall be subject to the following:

(i) no Event of Default shall have occurred and be continuing at the time any Extension Offer is delivered to the Lenders or at the time of such Extension;

(ii) except as to interest rates, fees, scheduled amortization and final maturity date (which, in each case, subject to clause (iv) below, shall be determined by the BorrowersBorrower and set forth in the relevant Extension Offer), the Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans, as applicable, of any Lender extended pursuant to any Extension shall have the same terms as the Class of Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans, as applicable, subject to the related Extension Offer; provided, at no time shall there be more than three different Classes of Term Loans, three different Classes of Incremental Term Loans, Other Term Loans or three different classes of Revolving Loans;

(iii) (x) the final maturity date of any Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans of a Class to be extended pursuant to an Extension shall be no earlier than the final maturity date of such Class, (y) the Weighted Average Life to Maturity of any Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans of a Class to be extended pursuant to an Extension shall be no shorter than the then applicable Weighted Average Life to Maturity of such Class and (z) the amortization schedule applicable to Term Loans, Incremental Term Loans or Other Term Loans subject to an Extension for periods prior to the Term Loan Maturity Date (or any Extended Maturity Date in effect prior to giving effect to such extension) may not be increased;

 

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(iv) if the aggregate principal amount of Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans of a Class in respect of which Lenders shall have accepted an Extension Offer exceeds the maximum aggregate principal amount of Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans, as the case may be, of such Class offered to be extended by the BorrowersBorrower pursuant to the relevant Extension Offer, then such Loans of such Class shall be extended ratably up to such maximum amount based on the relative principal amounts thereof (not to exceed any Lender’s actual holdings of record) with respect to which such Lenders accepted such Extension Offer;

(v) all documentation in respect of such Extension shall be consistent with the foregoing;

(vi) any applicable Minimum Extension Condition shall be satisfied; and

(vii) no Extension shall become effective unless, on the proposed effective date of such Extension, the conditions set forth in Section 3.2 shall be satisfied (with all references in such Section to a Credit Date being deemed to be references to the Extension on the applicable date of such Extension), and the Administrative Agent shall have received a certificate to that effect dated the applicable date of such Extension and executed by an Authorized Officer of the Borrower Representative.

(c) [Reserved].

(d) No Extension Offer is required to be in any minimum amount or any minimum increment, provided that (i) the BorrowersBorrower may at theirits 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 Borrowers’Borrower’s sole discretion and which may be waived by the BorrowersBorrower) of Loans of any or all applicable Classes be tendered and (ii) unless another amount is agreed to by the Administrative Agent, no Class of extended Term Loans shall be in an amount of less than $5,000,000. For the avoidance of doubt, it is understood and agreed that the provisions of Section 2.17 and Section 10.6 will not apply to Extensions of Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans, as applicable, pursuant to Extension Offers made pursuant to and in accordance with the provisions of this Section 2.24, including with respect to any payment of interest or fees in respect of any Term Loans, Incremental Term Loans, Other Term Loans or Revolving Loans, as applicable, that have been extended pursuant to an Extension at a rate or rates different from those paid or payable in respect of Loans of any other Class, in each case as is set forth in the relevant Extension Offer. It is further understood and agreed that Extensions of the Loans pursuant to this Section 2.24 shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.13 or 2.14.

(e) No Lender who rejects any request for an Extension shall be deemed a Non-Consenting Lender for purposes of Section 2.23.

(f) No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans, Incremental Term Loans, Other Term Loans and/or Revolving Credit Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolving Credit Commitments, the consent of the Issuing Bank and the Swing Line Lender (which consent shall not be unreasonably withheld or delayed). The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments (collectively, “Extension Amendments”) to this Agreement and the other Credit Documents as may be necessary in order establish new Classes of Term Loans, Incremental Term Loans,

 

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Other Term Loans or Revolving Loans, as applicable, created pursuant to an Extension and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the BorrowersBorrower in connection with the establishment of such new Classes, in each case on terms consistent with this Section 2.24. Notwithstanding the foregoing, the Administrative 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 2.24 and, if the Administrative Agent seeks such advice or concurrence, the Administrative Agent shall be permitted to enter into such amendments with the BorrowersBorrower in accordance with any instructions received from such Required Lenders and shall also be entitled to refrain from entering into such amendments with the BorrowersBorrower unless and until it shall have received such advice or concurrence; provided, regardless of whether there has been a request by the Administrative Agent for any such advice or concurrence, all such Extension Amendments entered into with the BorrowersBorrower by the Administrative Agent hereunder shall be binding on the Lenders. Without limiting the foregoing, in connection with any Extensions, the appropriate Credit Parties shall (at their expense) amend (and the Administrative Agent is hereby directed to amend) any Mortgage (or any other Credit Document that Administrative Agent or Collateral Agent reasonably requests to be amended to reflect an Extension) that has a maturity date prior to the latest Extended Maturity Date so that such maturity date is extended to the then latest Extended Maturity Date (or such later date as may be advised by local counsel to the Administrative Agent).

(g) In connection with any Extension, the Borrower Representative shall provide the Administrative Agent at least five 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 reasonably established by, or reasonably acceptable to, the Administrative Agent to accomplish the purposes of this Section 2.24.

2.25 Incremental Loans.

(a) Types of Facilities. The BorrowersBorrower may by written notice by the Borrower Representative to the Administrative Agent elect to request (i) prior to the Revolving Credit Commitment Termination Date, an increase to the existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”, together with the Incremental Revolving Credit Commitments, each an “Incremental Facility” and collectively, the “Incremental Facilities”); provided:

(i) each Incremental Term Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal Dollar Amount that is not less than $5,000,000 and shall be in an increment of a Dollar Amount of $1,000,000 (provided, such amount may be less than $5,000,000 if such amount represents all then remaining availability under the limit set forth in clause (ii) below); and

(ii) the aggregate amount of the Incremental Facilities requested after the Closing Date shall not exceed the Maximum Incremental Facilities Amount as in effect at such time (it being understood that the Maximum Incremental Facilities Amount shall be calculated as set forth in the definition thereof);

For the avoidance of doubt, no existing Lender shall be obligated to provide any Incremental Facilities.

(b) Notice. Each notice referred to in Section 2.25(a) shall specify (i) the date (each, an “Incremental Increase Date”) on which the Borrowers proposeBorrower proposes that Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments shall be effective, which

 

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shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Lender, other Eligible Assignee or any other Person (each, an “Incremental Revolving Lender” or an “Incremental Term Loan Lender”, as applicable) to whom the Borrowers proposeBorrower proposes any portion of such Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments be allocated and the amounts of such allocations; provided, (x) any Eligible Assignee or other Person identified by the BorrowersBorrower as a proposed Incremental Revolving Lender shall be acceptable to each of the Administrative Agent, the Issuing Bank and the Swing Line Lender in its sole discretion and (y) any Eligible Assignee or other Person identified by the BorrowersBorrower as a proposed Incremental Term Loan Lender shall be reasonably acceptable to the Administrative Agent.

(c) Conditions to Effectiveness. Each Incremental Revolving Credit Commitment and/or Incremental Term Loan Commitment shall become effective as of the applicable Incremental Increase Date; provided:

(i) (a) if the proceeds of such Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, no Default or Event of Default shall exist on such Incremental Increase Date immediately before and immediately after giving effect to such Incremental Term Loan Commitments and the borrowings thereunder, provided that the Lenders providing such Incremental Term Loan Commitments may instead agree that (1) no Default or Event of Default shall exist at the time that the definitive acquisition agreement is entered into (determined in accordance with Section 1.7) and (2) on such Incremental Increase Date both immediately before and immediately after giving effect to such Incremental Revolving Credit Commitment and/or Incremental Term Loan Commitments and the borrowings thereunder, no Event of Default under Section 8.1(a) (but, in the case of such Section 8.1(a), solely if with respect to principal, premium, interest, regularly accruing fees and unreimbursed amounts in respect of Letters of Credit), 8.1(f) or 8.1(g) shall have occurred and be continuing or would result therefrom and (b) in all other cases, no Default or Event of Default shall exist on such Incremental Increase Date immediately before or immediately after giving effect to such Incremental Revolving Credit Commitment and/or Incremental Term Loan Commitments and the borrowings thereunder;

(ii) both immediately before and immediately after giving effect to such Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments and the borrowings thereunder, as of such Incremental Increase Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects) on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall have been true and correct in all respects) on and as of such earlier date; provided, with respect to this clause (ii), to the extent that the proceeds of Loans under any Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, the availability thereof instead may be subject to customary “SunGard” or “certain funds” conditionality to the extent agreed by the Lenders providing such Loans;

 

 

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(iii) if applicable, the Borrower Representative shall have delivered a fully executed Funding Notice to the Administrative Agent at the Notice Office no later than 11:00 a.m. (New York City time) at least three Business Days in advance of the proposed Credit Date in the case of any Incremental Term Loan that is a Eurodollar Loan, and at least one Business Day in advance of the proposed Credit Date in the case of an Incremental Term Loan that is a Base Rate Loan; and

(iv) such Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements, each of which shall be recorded in the Register.

(d) Incremental Revolving Credit Commitments. On any Incremental Increase Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the Revolving Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Incremental Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (ii) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Credit Commitments and all matters relating thereto.

(e) Series of Incremental Term Loans. Any Incremental Term Loans made on an Incremental Increase Date shall be designated a series (a “Series”) of Incremental Term Loans for all purposes of this Agreement and such Series may form part of, and have the same terms as, the initial Term Loans made by the Lenders on the Closing Date, Extended Term Loans incurred pursuant to Section 2.24, or any existing Series of Incremental Term Loans incurred pursuant to Section 2.25 or any existing Series of Other Term Loans pursuant to Section 2.26. On any Incremental Increase Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the BorrowersBorrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto.

(f) Notice to Lenders. The Administrative Agent shall notify the Lenders, promptly upon receipt of the Borrower Representative’sBorrower’s notice of an Incremental Increase Date, of (i) the Incremental Revolving Credit Commitments and the Incremental Revolving Lenders and the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, in each case, as applicable, and (ii) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section.

(g) Terms. The material terms and provisions (other than upfront fees) of the Incremental Revolving Credit Commitments and Incremental Revolving Loans shall be identical to the Revolving Credit Commitments and the Revolving Loans and shall be added to, and constitute a part of, the Revolving Credit Commitments and the Revolving Loans. The terms of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be mutually agreed by the BorrowersBorrower and the applicable Incremental Term Loan Lenders; provided such Series may form

 

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part of, and have the same terms as, the initial Term Loans made by the Lenders on the Closing Date, Extended Term Loans incurred pursuant to Section 2.24, any existing Series of Incremental Term Loans incurred pursuant to Section 2.25 or any existing Series of Other Term Loans pursuant to Section 2.26; provided further, in the case of any separate Series:

(i) such Series shall rank pari passu in right of payment, and rank pari passu in right of security, with the Obligations;

(ii) (A) the maturity date applicable to such Series shall not be earlier than the then-final scheduled maturity date of the Term Loans with the latest Term Loan Maturity Date then in effect, and (B) the Weighted Average Life to Maturity of such Series shall not be shorter than the then applicable Weighted Average Life to Maturity of the Term Loans with the latest Term Loan Maturity Date then in effect;

(iii) such Series shall not be (A) secured by a Lien on any property that does not also secure the Obligations or (B) be guaranteed by any Person other than a Guarantor (and any guaranty by Holdings or LLC Subsidiary shall be limited in recourse on the same basis as their Guaranty hereunder);

(iv) such Series shall share on a pro rata basis in all mandatory and voluntary prepayments of Term Loans unless the Lenders providing such Series agree to payment on a less than pro rata basis;

(v) if the Weighted Average Yield relating to such Series (which, in the case of each Series of Incremental Term Loans whenever incurred, shall be determined by the BorrowersBorrower and the Lenders providing such Series of Incremental Term Loans) exceeds the Weighted Average Yield relating to the Term Loans on such date by more than 0.50%, then the Weighted Average Yield relating to the Term Loans shall be adjusted to be equal to the Weighted Average Yield relating to such Series minus 0.50%; and

(vi) except as otherwise expressly set forth in the foregoing clauses (i) through (v), inclusive, the pricing (including interest, fees and premiums) and optional prepayment terms with respect such Series shall be determined by the BorrowersBorrower and the lenders providing such Series and be reasonably satisfactory to the Administrative Agent; provided, (A) such Series may not be voluntarily or mandatorily prepaid prior to repayment in full of the Obligations (other than Remaining Obligations), unless accompanied by at least a ratable payment of the then existing Obligations, and (B) the other terms of such Series (other than with respect to pricing, margin, maturity and/or fees or as otherwise contemplated in the foregoing clauses (i) through (v) above) shall be, when taken as a whole, not materially more favorable (as reasonably determined by the BorrowersBorrower in good faith) to the lenders or holders providing such Series than those applicable to the Term Loans (except to the extent (x) such terms are reasonably acceptable to the Administrative Agent or added in the Credit Documents for the benefit of the Lenders pursuant to an amendment hereto or thereto subject solely to the reasonable satisfaction of the Administrative Agent or (y) such terms are applicable solely to periods after the latest final Term Loan Maturity Date existing at the time of such incurrence).

(h) Joinder Agreement. Each Joinder Agreement may, without the consent of any the Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary o