Execution Version
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT (this “Amendment”) dated as of June 23, 2023 to the Credit Agreement dated as of October 20, 2021 (as amended by the Agreement and Amendment No. 1 to Credit Agreement dated as of November 22, 2021, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement, as amended by this Amendment, the “Credit Agreement”) among MIRION TECHNOLOGIES (HOLDINGSUB2), LTD., a limited liability company incorporated in England and Wales with company number 09299632 (“Holdings”), MIRION TECHNOLOGIES (US HOLDINGS), INC., a Delaware corporation (the “Parent Borrower”), MIRION TECHNOLOGIES (US), INC. (“Subsidiary Borrower”), CITIBANK, N.A., as Administrative Agent and Collateral Agent (the “Agent”) and the other Persons party thereto from time to time.
W I T N E S S E T H :
WHEREAS, in accordance with the definition of “USD Early Opt-in Election” set forth in the Existing Credit Agreement, (i) the Parent Borrower has requested that the Administrative Agent notify each of the other parties to the Existing Credit Agreement that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and (ii) the Administrative Agent and the Parent Borrower have jointly elected to trigger a fallback from USD LIBOR, and the Administrative Agent has provided written notice of such election to the Lenders;
WHEREAS, the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date the notice of the aforementioned USD Early Opt-in Election was provided to the Lenders, written notice of objection to such USD Early Opt-in Election from Lenders comprising the Required Facility Lenders with respect to the affected Classes (taken collectively);
WHEREAS, in accordance with Section 1.16(a) of the Existing Credit Agreement, on the Amendment Effective Date, which is the sixth (6th) Business Day after the date notice of the aforementioned USD Early Opt-in Election was provided to the Lenders, the USD Benchmark Replacement will replace USD LIBOR as the current USD Benchmark for all purposes under the Existing Credit Agreement and under any other Credit Document;
WHEREAS, pursuant to Section 1.16(c) of the Existing Credit Agreement, in connection with the implementation of a USD Benchmark Replacement, the Administrative Agent has the right to make USD Benchmark Replacement Conforming Changes from time to time and any amendment implementing such USD Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to the Existing Credit Agreement;
WHEREAS, pursuant to Section 13.1(a) of the Existing Credit Agreement, the Existing Credit Agreement may be amended to modify the provisions that affect only the Revolving Credit Facility with the consent of each Revolving Credit Lender, and the Revolving Credit Lenders party hereto (constituting all of the Revolving Credit Lenders under the Existing Credit Agreement) have agreed to consent to such amendments; and
WHEREAS, pursuant to Section 13.1(i)(iii), the Administrative Agent and the Parent Borrower also have the right to make amendments to cure any ambiguity, omission, mistake, defect, obvious or technical error, inconsistency or to fix any cross-reference and otherwise effect administrative changes of a technical or immaterial nature without any further action or consent of any other party to the Existing Credit Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Defined Terms; References.

    
    


(a)Unless otherwise specifically defined herein, each term used herein that is defined in the Existing Credit Agreement or the Credit Agreement has the meaning assigned to such term in the Existing Credit Agreement or the Credit Agreement as the context requires.
(b)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 Existing Credit Agreement shall, after the Amendment Effective Date (as defined below), refer to the Existing Credit Agreement as amended hereby, and the term “Credit Agreement” as used in any Credit Document shall mean the Existing Credit Agreement as amended hereby.
(c)This Amendment shall constitute a “Credit Document” for purposes of the Credit Agreement and the other Credit Documents.
Section 2. Amendments. On and as of the Amendment Effective Date (as defined below), (i) the Existing Credit Agreement is hereby amended in the manner set forth on Annex A hereto (with inserted text indicated in the following manner: inserted text and deleted text indicated in the following manner: deleted text) and (ii) Exhibits K and O thereof are hereby replaced with the Exhibits K and O set forth in Annex B attached hereto.
Section 3. Representations and Warranties. The Parent Borrower represents and warrants to each other party hereto that this Amendment (a) has been duly authorized by all necessary corporate, partnership or other organizational action, and, if required, action by its partners, members or shareholders, as applicable, (b) has been duly executed and delivered by the Parent Borrower and (c) constitutes a legal, valid and binding obligation of the Parent Borrower enforceable against the Parent Borrower in accordance with its terms, subject to the Legal Reservations.
Section 4. Effectiveness. This Amendment shall be effective as of the date that the Agent shall have received counterparts of this Amendment executed by Holdings, the Parent Borrower, the Subsidiary Borrower, each Revolving Credit Lender party to the Existing Credit Agreement and the Administrative Agent (the “Amendment Effective Date”).
Section 5. Transition to Term SOFR. This Amendment implements USD Benchmark Conforming Changes in connection with the replacement of USD LIBOR with Adjusted Term SOFR (as defined in Credit Agreement). Notwithstanding anything herein or in the Credit Agreement to the contrary, any Eurocurrency Loan denominated in Dollars that is outstanding as of the Amendment Effective Date (an “Existing USD LIBOR Loan”) shall remain a Loan which accrues interest by reference to the applicable Eurocurrency Rate (without giving effect to the changes to the Existing Credit Agreement made by this Amendment) until the end of the applicable Interest Period. Any Existing USD LIBOR Loan shall automatically convert to a Term SOFR Loan in the amount of such Existing USD LIBOR Loan and with an Interest Period with the nearest length to such existing Interest Period on the last day of the Interest Period applicable to such Existing USD LIBOR Loan, unless, with respect to the length of such Interest Period, the Parent Borrower elects otherwise in accordance with the terms of the Credit Agreement.
Section 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
Section 7. Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or electronic transmission, including the use of any electronic signatures, shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” and words of like import used in connection with this Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Requirements of Law, including the Federal Electronic
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Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 8. Effect of Amendment; Reaffirmation.
(a)Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or the Lenders under the Existing Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Credit Document, all of which, as amended, supplemented or otherwise modified hereby, are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Credit Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Credit Document in similar or different circumstances.
(b)Without limiting the foregoing, the Parent Borrower (i) acknowledges and agrees that each Credit Document to which it is a party is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms (in the case of the Existing Credit Agreement, as amended hereby) and (ii) reaffirms its obligations under the Existing Credit Agreement, as amended hereby.

[signatures follow on next page]
3

    
    


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
MIRION TECHNOLOGIES (HOLDINGSUB2), LTD.
as Holdings
By:
/s/ James Cocks
Name: James Cocks
Title: Director

MIRION TECHNOLOGIES (US HOLDINGS), INC.
as Parent Borrower
By:
/s/ Thomas D. Logan
Name: Thomas D. Logan
Title: President

MIRION TECHNOLOGIES (US), INC.
as Subsidiary Borrower
By:
/s/ Brian Schopfer
Name: Brian Schopfer
Title: Chief Financial Officer

[Signature Page to Amendment No. 2]
    
    


CITIBANK, N.A.,
as Agent and a Revolving Lender
By:/s/ James Oleskewicz
Name:    James Oleskewicz
Title:    Vice President

[Signature Page to Amendment No. 2]
    
    


GOLDMAN SACHS LENDING PARTNERS LLC,
as a Revolving Lender

By:
__/s/ Keshia Leday________________________
Name: Keshia
Title: Authorized Signatory


[Signature Page to Amendment No. 2]
    
    


JEFFERIES FINANCE LLC,
as a Revolving Lender

By:
_/s/ JR Young_____________________________
Name: JR Young
Title: Managing Director


[Signature Page to Amendment No. 2]
    
    


JPMORGAN CHASE BANK, N.A.,
as a Revolving Lender

By:
/s/ Monica Knight_________________________
Name: Monica Knight
Title: Vice President


[Signature Page to Amendment No. 2]
    
    

Execution Version
Conformed for Agreement and Amendment No. 1 dated as of November 22, 2021 and Amendment No. 2 dated as of June 23, 2023
Annex A

Amended Credit Agreement

[Attached.]


















































    
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CREDIT AGREEMENT
dated as of October 20, 2021
among
MIRION TECHNOLOGIES (HOLDINGSUB2), LTD.,
as Holdings,

MIRION TECHNOLOGIES (US HOLDINGS), INC.,
as the Parent Borrower,

MIRION TECHNOLOGIES (US), INC.,
as the Subsidiary Borrower,

THE OTHER BORROWERS
FROM TIME TO TIME PARTY HERETO,

THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,

CITIBANK, N.A.,
as the Administrative Agent, the Collateral Agent, a Letter of Credit Issuer and a Lender,

GOLDMAN SACHS LENDING PARTNERS LLC,
CITIBANK, N.A.,
JEFFERIES FINANCE LLC
and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Bookrunners

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TABLE OF CONTENTS
Page
Section 1.    Definitions    1
1.1    Defined Terms    1
1.2    Other Interpretive Provisions    87
1.3    Accounting Terms    88
1.4    Rounding    8889
1.5    References to Agreements Laws, Etc.    89
1.6    Exchange Rates    89
1.7    No Warranty With Respect to Rates    8990
1.8    Times of Day    8990
1.9    Timing of Payment or Performance    90
1.10    Certifications    90
1.11    Classification and Reclassification; Certain Incurrences; Limited Condition Transactions    90
1.12    Pro Forma and Other Calculations    92
1.13    Additional Borrowers    9293
1.14    Additional Currencies    9394
1.15    Divisions    9394
1.16    Benchmark Replacements    94
1.17    Certain Principles Relating to Collateral    96
Section 2.    Amount and Terms of Credit.    9697
2.1    Commitments    9697
2.2    Minimum Amount of Each Borrowing; Maximum Number of Borrowings    9798
2.3    Notice of Borrowing    98
2.4    Disbursement of Funds    99
2.5    Repayment of Loans; Evidence of Debt    99100
2.6    Conversions and Continuations    101
2.7    Pro Rata Borrowings    101102
2.8    Interest    102
2.9    Interest Periods    103
2.10    Increased Costs, Illegality, Etc.    103104
2.11    Compensation    105106
2.12    Change of Lending Office    105106
2.13    Notice of Certain Costs    106107
2.14    Incremental Facilities    106107
2.15    Permitted Debt Exchanges    113114
2.16    Ancillary Facilities    114115
2.17    [Reserved.].    119120
2.18    Defaulting Lenders    119120
Section 3.    Letters of Credit    121122
3.1    Letters of Credit    121122
3.2    Letter of Credit Requests    123124
3.3    Letter of Credit Participations    125126
3.4    Agreement to Repay Letter of Credit Drawings    126127
3.5    Increased Costs    128129

    
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3.6    New or Successor Letter of Credit Issuer    129130
3.7    Role of Letter of Credit Issuer    130131
3.8    Cash Collateral    131
3.9    Applicability of ISP and UCP    131132
3.10    Conflict with Issuer Documents    132133
3.11    Letters of Credit Issued for Restricted Subsidiaries    132133
3.12    Provisions Related to Extended Revolving Credit Commitments    132133
Section 4.    Fees; Termination of Commitments    132133
4.1    Fees    132133
4.2    Voluntary Reduction of Revolving Credit Commitments    133134
4.3    Mandatory Termination of Commitments    134135
Section 5.    Payments    134135
5.1    Voluntary Prepayments    134135
5.2    Mandatory Prepayments    135136
5.3    Method and Place of Payment    139140
5.4    Net Payments    139140
5.5    Computations of Interest and Fees    143144
5.6    Limit on Rate of Interest    143144
Section 6.    Conditions Precedent to Initial Borrowing    144145
6.1    Credit Documents    144145
6.2    Collateral    144145
6.3    Legal Opinions    145146
6.4    Closing Certificates    145146
6.5    Authorization of Proceedings of Original Credit Parties; Corporate Documents    145146
6.6    Fees    145146
6.7    Representations and Warranties    145146
6.8    Solvency Certificate    146147
6.9    Patriot Act    146147
6.10    Historical Financial Statements; Pro Forma Financial Statements    146147
6.11    Refinancing    146147
6.12    Notice of Borrowing    146147
6.13    Acquisition    146147
6.14    Closing Date Material Adverse Effect    147148
Section 7.    Conditions Precedent to All Credit Events after the Closing Date    147148
7.1    No Default; Representations and Warranties    148149
7.2    Notice of Borrowing; Letter of Credit Request    148149
Section 8.    Representations and Warranties    148149
8.1    Corporate Status    148149
8.2    Corporate Power and Authority    149150
8.3    No Violation    149150
8.4    Litigation    149150
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8.5    Margin Regulations    149150
8.6    Governmental Approvals    149150
8.7    Investment Company Act    150
8.8    True and Complete Disclosure    150151
8.9    Financial Condition; Financial Statements    150151
8.10    Compliance with Laws    151
8.11    Tax Matters    151
8.12    Compliance with ERISA    151152
8.13    Subsidiaries    151152
8.14    Intellectual Property    151152
8.15    Environmental Laws    151152
8.16    Properties    151152
8.17    Solvency    152
8.18    [Reserved]    152153
8.19    [Reserved]    152153
8.20    Sanctions and Anti-Corruption    152153
8.21    Security Interest in Collateral    152153
Section 9.    Affirmative Covenants.    153
9.1    Information Covenants    153154
9.2    Books, Records, and Inspections    156
9.3    Maintenance of Insurance    156157
9.4    Payment of Taxes    157158
9.5    Preservation of Existence; Consolidated Corporate Franchises    157158
9.6    Compliance with Statutes, Regulations, Etc.    158
9.7    Employee Benefit Matters    158159
9.8    Maintenance of Properties    158159
9.9    Transactions with Affiliates    158159
9.10    End of Fiscal Years    161
9.11    Additional Borrowers and Guarantors; Additional Real Estate    161
9.12    [Reserved]    162
9.13    Use of Proceeds    162163
9.14    Further Assurances    162163
9.15    Maintenance of Ratings    162163
9.16    Lines of Business    163
9.17    Designation of Subsidiaries    163164
Section 10.    Negative Covenants    163164
10.1    Limitation on Indebtedness    163164
10.2    Limitation on Liens    169170
10.3    Limitation on Fundamental Changes    169170
10.4    Limitation on Sale of Assets    170171
10.5    Limitation on Restricted Payments    172173
10.6    Negative Pledge Provisions    176177
10.7    First Lien Net Leverage Ratio    178179
10.8    Amendment of Junior Debt Documents    178179
10.9    Passive Holdings Covenant    178179
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Section 11.    Events of Default    179180
11.1    Payments    179180
11.2    Representations, Etc.    179180
11.3    Covenants    179180
11.4    Default Under Other Agreements    180181
11.5    Bankruptcy, Etc.    180181
11.6    ERISA and Other Employee Benefit Matters    181182
11.7    Guarantee    181182
11.8    Pledge Agreement    181182
11.9    Security Agreement    181182
11.10    Judgments    182183
11.11    Change of Control    182183
11.12    Remedies Upon Event of Default    182183
11.13    Application of Proceeds    183184
11.14    Equity Cure    183185
Section 12.    The Agents    184186
12.1    Appointment    184186
12.2    Delegation of Duties    185187
12.3    Exculpatory Provisions    185187
12.4    Reliance by Agents    186187
12.5    Notice of Default    186188
12.6    Non-Reliance on Administrative Agent, Collateral Agent, and Other Lenders    187188
12.7    Indemnification    187188
12.8    Agents in Their Individual Capacities    188189
12.9    Successor Agents    188189
12.10    Withholding Tax    189190
12.11    Agents Under Security Documents and Guarantee    189191
12.12    Right to Realize on Collateral and Enforce Guarantee    189191
12.13    Intercreditor Agreement Governs    190191
12.14    Parallel Debt    190192
12.15    Certain ERISA Matters.    191192
12.16    Erroneous Payments    192193
Section 13.    Miscellaneous    194196
13.1    Amendments, Waivers, and Releases    194196
13.2    Notices    201202
13.3    No Waiver; Cumulative Remedies    201203
13.4    Survival of Representations and Warranties    201203
13.5    Payment of Expenses; Indemnification    202203
13.6    Successors and Assigns; Participations and Assignments    203205
13.7    Replacements of Lenders Under Certain Circumstances    209211
13.8    Adjustments; Set-off    211212
13.9    Counterparts    211213
13.10    Severability    211213
13.11    Integration    211213
13.12    GOVERNING LAW    212213
13.13    Submission to Jurisdiction; Waivers    212213
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13.14    Acknowledgments    213214
13.15    WAIVERS OF JURY TRIAL    214215
13.16    Confidentiality    214215
13.17    Direct Website Communications    215216
13.18    PATRIOT Act    216218
13.19    Judgment Currency    216218
13.20    Payments Set Aside    217218
13.21    No Fiduciary Duty    217219
13.22    Obligations Joint and Several    217219
13.23    Acknowledgment and Consent to Bail-In of Affected Financial Institution    218219
13.24    Acknowledgment Regarding any Supported QFCs    218220

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SCHEDULES
Schedule 1.1(a)    [Reserved]
Schedule 1.1(b)    Commitments of Lenders
Schedule 1.1(c)     Mortgaged Properties
Schedule 1.1(d)     Existing Letters of Credit
Schedule 1.1(e)     [Reserved]
Schedule 1.1(f)    Certain Add-Backs
Schedule 1.1(g)    QofE Reports
Schedule 1.1(h)    Closing Date Guarantors
Schedule 1.1(i)    Unrestricted Subsidiaries
Schedule 8.4    Litigation
Schedule 8.13    Subsidiaries
Schedule 9.14    Post-Closing Actions
Schedule 10.1    Closing Date Indebtedness
Schedule 10.2    Closing Date Liens
Schedule 10.4    Closing Date Dispositions
Schedule 10.5    Closing Date Investments
Schedule 13.2    Notice Addresses

EXHIBITS
Exhibit A    [Reserved]
Exhibit B    Form of Guarantee
Exhibit C    Form of Pledge Agreement
Exhibit D    Form of Security Agreement
Exhibit E    Form of Closing Certificate
Exhibit F    Form of Assignment and Acceptance
Exhibit G-1    Form of Promissory Note (Initial Term Loans)
Exhibit G-2    Form of Promissory Note (Revolving Credit Loans)
Exhibit H    [Reserved]
Exhibit I    [Reserved]
Exhibit J-1    Form of Non-Bank Tax Certificate
(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-2    Form of Non-Bank Tax Certificate
(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-3    Form of Non-Bank Tax Certificate
(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-4    Form of Non-Bank Tax Certificate
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit K    Form of Notice of Borrowing or Continuation or Conversion
Exhibit L    Form of Letter of Credit Request
Exhibit M-1    Form of Hedge Bank Designation
Exhibit M-2    Form of Cash Management Bank Designation
Exhibit N    Form of Additional Borrower Agreement
Exhibit O    Form of Prepayment Notice

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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of October 20, 2021, among MIRION TECHNOLOGIES (HOLDINGSUB2), LTD., a limited liability company incorporated in England and Wales with company number 09299632 (“Holdings”), MIRION TECHNOLOGIES (US HOLDINGS), INC., a Delaware corporation (the “Parent Borrower”), MIRION TECHNOLOGIES (US), INC., a Delaware corporation (the “Company” or “Subsidiary Borrower”), the other persons listed on the signature pages hereto as borrowers (such borrowers, collectively with the Parent Borrower, the Subsidiary Borrower and any Additional Borrowers (as defined below), the “Borrowers” and each a “Borrower”), the lending institutions from time to time parties hereto (each, a “Lender” and, collectively, the “Lenders”) and CITIBANK, N.A. (“Citi”), as the Administrative Agent, the Collateral Agent and a Letter of Credit Issuer (such terms and each other capitalized term used but not defined in this preamble having the meaning provided in Section 1).
WHEREAS, pursuant to the terms of the Transaction Agreement, GS Acquisition Holdings Corp II, a Delaware corporation (the “Parent”), intends to acquire (the “Acquisition”), directly or indirectly, not less than a majority of the issued and outstanding Equity Interests of Mirion Technologies (TopCo), Ltd., a Jersey private company limited by shares (together with its subsidiaries, the “Target”);
WHEREAS, in connection with the Transactions, the Parent is anticipated to issue or sell Qualified Stock to Goldman Sachs & Co. LLC (“GS & Co.”) or an Affiliate of GS & Co. and/or one or more other investors in a private placement (the “PIPE Financing”);
WHEREAS, (a) the Borrowers have requested that the Lenders extend credit to the Borrowers in the form of $830,000,000 in aggregate principal amount of Initial Term Loans to be borrowed on the Closing Date and Revolving Credit Loans made available to the Borrowers at any time and from time to time prior to the Revolving Credit Maturity Date in an aggregate principal amount at any time outstanding not in excess of $90,000,000 less the sum of (1) the aggregate Letters of Credit Outstanding at such time and (2) the aggregate Ancillary Outstandings at such time and (b) the Parent Borrower and the Subsidiary Borrower have requested (i) the Letter of Credit Issuers to issue Letters of Credit at any time and from time to time prior to the L/C Facility Maturity Date and (ii) to deem the letters of credit identified on Schedule 1.1(d) to be Letters of Credit for all purposes under this Agreement, collectively, in an aggregate Dollar Equivalent Stated Amount at any time outstanding not in excess of $50,000,000; and
WHEREAS, the Lenders and Letter of Credit Issuers are willing to make available to the Borrowers such term loan and revolving credit and letter of credit facilities upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:
Section 1.Definitions
Section 2.Defined Terms. As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural the singular):
ABR” shall mean for any day a fluctuating rate per annum equal to the highest of (i) the Federal Funds Effective Rate plus 1/2 of 1%, (ii) the rate of interest in effect for such day as
    
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determined from time to time by the Administrative Agent as its “prime rate” at its principal office in New York City and notified to the Borrower, and (iii) the rate per annum determined in the manner set forth in clause (a) of the definition of Eurocurrency RateAdjusted Term SOFR for a one-month tenor in effect on such day plus 1%; provided that notwithstanding the foregoing, in no event shall the ABR applicable to (i) Initial Term Loans at any time be less than 1.50% per annum or (ii) Revolving Credit Loans at any time be less than 1.00% per annum. Any change in the ABR due to a change in such rate or in the Federal Funds Effective Rate or Eurocurrency RateAdjusted Term SOFR shall take effect at the opening of business on the day of such change.
ABR Loan” shall mean each Loan bearing interest based on the ABR.
ABR Term SOFR Determination Day” shall have the meaning specified in the definition of “Term SOFR”.
Acceptable Intercreditor Agreement” shall mean any Market Intercreditor Agreement or another intercreditor agreement that is reasonably satisfactory to the Parent Borrower and the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
Acquired EBITDA shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity, determined on a consolidated basis for such Pro Forma Entity.
Acquired Entity or Business shall have the meaning provided in the definition of the term Pro Forma Basis.
Acquired Indebtedness” shall mean, with respect to any specified Person, (i) Indebtedness of any other Person existing at the time such other Person is merged, consolidated, or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging, consolidating, or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
Acquisition” shall have the meaning provided in the recitals of this Agreement.
Additional Agreement” shall have the meaning provided in Section 12.13(a).
Additional Borrower” shall mean each Additional Revolving Borrower and each Subsidiary Ancillary Borrower.
Additional Borrower Agreement” shall mean the Additional Borrower Agreement substantially in the form of Exhibit N.
Additional ECF Prepayment Reduction Amounts” shall mean the sum, without duplication, of:
(a)    without duplication of amounts deducted pursuant to clause (d) below in prior periods, the amount of Capital Expenditures or acquisitions of Intellectual Property accrued or made in cash during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of the Parent Borrower or the Restricted Subsidiaries,
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(b)    without duplication of amounts deducted pursuant to clause (d) below in prior periods, the aggregate amount of cash consideration paid by the Parent Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions (but excluding Permitted Investments of the type described in clauses (i) and (ii) of the definition thereof)) made during such period constituting Permitted Investments or made pursuant to Section 10.5 to the extent that such Investments were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness or (2) the issuance of Equity Interests,
(c)    the amount of Restricted Payments paid in cash during such period (on a consolidated basis) by the Parent Borrower and the Restricted Subsidiaries to the extent such Restricted Payments were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness or (2) the issuance of Equity Interests,
(d)    without duplication of amounts deducted from Excess Cash Flow in other periods, (1) the aggregate consideration required to be paid in cash by the Parent Borrower or any of its Restricted Subsidiaries pursuant to binding contracts or instruments (the “Contract Consideration”) entered into prior to or during such period and (2) any planned cash expenditures by the Parent Borrower or any of its Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses (1) and (2), relating to Investments, Permitted Acquisitions, Capital Expenditures, acquisitions of Intellectual Property or Restricted Payments to be consummated or made during the period of four consecutive fiscal quarters of the Parent Borrower following the end of such period (except to the extent financed with any of the proceeds received from (A) the issuance or incurrence of long-term Indebtedness or (B) the issuance of Equity Interests); provided that to the extent that the aggregate amount of cash actually utilized to finance such Investments, Permitted Acquisitions, Capital Expenditures, acquisitions of Intellectual Property or Restricted Payments during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters, and
(e)    without duplication of amounts so deducted in the calculation of “Excess Cash Flow”, the aggregate amount of all other Indebtedness permitted to be incurred pursuant to Section 10.1 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Credit Facilities, voluntarily prepaid, repurchased, redeemed or otherwise retired (or contractually committed to be prepaid, repurchased, redeemed or otherwise retired).
Additional Revolving Borrower” shall have the meaning provided in Section 1.13(a).
Additional Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
Additional Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that in no event shall Adjusted Term SOFR be less than the Floor.
Adjusted Total Ancillary Commitment” shall mean at any time the Total Ancillary Commitment less the aggregate Ancillary Commitments of all Defaulting Lenders.
Adjusted Total Revolving Credit Commitment” shall mean at any time the Total Revolving Credit Commitment less the aggregate Revolving Credit Commitments of all Defaulting Lenders.
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Adjusted Total Term Loan Commitment” shall mean at any time the Total Term Loan Commitment less the Term Loan Commitments of all Defaulting Lenders.
Administrative Agent” shall mean Citi, as the administrative agent for the Lenders under this Agreement and the other Credit Documents, or any successor administrative agent appointed pursuant to Section 12.9.
Administrative Agent’s Office shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 13.2 or such other address or account as the Administrative Agent may from time to time notify the Parent Borrower and the Lenders.
Administrative Questionnaire shall have the meaning provided in Section 13.6(b)(ii)(D).
Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise; provided that Goldman Sachs shall be deemed not to be an Affiliate of any Initial Investor, Holdings or any of its subsidiaries. For purposes of this Agreement and the other Loan Documents, Jefferies LLC and its Affiliates shall be deemed to be Affiliates of Jefferies Finance LLC and its Affiliates.
Affiliated Institutional Lender” shall mean any Affiliate of any Initial Investor that as of the relevant date of determination is an Affiliate of Holdings, the Parent Borrower or any other Subsidiary of Holdings and that is a bona fide debt Fund or an investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course and whose managers have fiduciary duties to the investors in such fund or investment vehicle independent of or in addition to their duties to the Initial Investors and with respect to which no personnel making investment decisions with respect to the Parent Borrower has the power to make investment decisions.
Affiliated Lender” shall mean a Lender that is an Initial Investor and that as of the relevant date of determination is an Affiliate of Holdings, the Parent Borrower or any other Subsidiary of Holdings (other than Holdings, the Parent Borrower, any other Subsidiary of Holdings, or any Affiliated Institutional Lender).
Agent Party” and “Agent Parties shall have the meanings provided in Section 13.17(b).
Agents” shall mean the Administrative Agent, the Collateral Agent and each Joint Lead Arranger.
Agreement” shall mean this Credit Agreement.
Agreement Currency” shall have the meaning provided in Section 13.19.
Ancillary Commencement Date” shall mean, with respect to an Ancillary Facility, the date on which such Ancillary Facility is first made available, which date shall be a Business Day falling on or after the Closing Date and before the Business Day preceding the Revolving Credit Maturity Date.
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Ancillary Commitment” shall mean, with respect to any Ancillary Lender and any Ancillary Facility, the maximum Dollar Equivalent which such Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorized as such under Section 2.16, to the extent such amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to such Ancillary Facility.
Ancillary Document” shall mean each document relating to or evidencing the terms of an Ancillary Facility.
Ancillary Facility” shall mean any ancillary facility made available by an Ancillary Lender in accordance with Section 2.16.
Ancillary Facility Sublimit” shall mean an amount equal to $30,000,000. The Ancillary Facility Sublimit is part of, and not in addition to, the Revolving Credit Facility.
Ancillary Lender” shall mean each Revolving Credit Lender (or Affiliate of a Revolving Credit Lender that qualifies as an Eligible Assignee) which makes available an Ancillary Facility in accordance with Section 2.16.
Ancillary Outstandings” shall mean, at any time, with respect to any Ancillary Lender and any Ancillary Facility then in effect, the aggregate (as determined by such Ancillary Lender) Dollar Equivalent of (x) the principal amount under each Ancillary Facility which is an overdraft facility (net of any Available Credit Balance), (y) the face amount of each guarantee, bond, letter of credit or credit order outstanding under such Ancillary Facility and (z) the amount fairly representing the aggregate exposure (excluding interest and similar charges) of such Ancillary Lender under each other type of accommodation provided under such Ancillary Facility, in each case as determined by such Ancillary Lender, acting reasonably in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.
Anti-Corruption Laws” shall mean the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010.
Applicable Margin” shall mean a percentage per annum equal to:
(i)    (a)     for EurocurrencyTerm SOFR Loans that are Initial Term Loans, 2.75% and (b) for ABR Loans that are Initial Term Loans, 1.75%; and
(ii)    for Term SOFR Loans, Eurocurrency Loans, RFR Loans or ABR Loans that are Revolving Credit Loans, the rate per annum set forth below under the caption “ABR Spread” or “Term SOFR, Eurocurrency Rate and RFR Rate Spread”, as the case may be, based upon the Status in effect as of the last day of the most recently ended Test Period;
StatusABR Spread for Revolving Credit Loans
Term SOFR, Eurocurrency Rate and RFR Rate Spread for Revolving Credit Loans
Level I Status1.75%2.75%
Level II Status1.50%2.50%
Level III Status1.25%2.25%
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Notwithstanding the foregoing, (a) the Applicable Margin for Term SOFR Loans, Eurocurrency Loans, RFR Loans or ABR Loans that are Revolving Credit Loans for the period from and including the Closing Date to but excluding the first day following the date on which Section 9.1 Financials are delivered to the Administrative Agent for the first full fiscal quarter ending after the Closing Date shall be the Applicable Margin for Level I Status, (b) the Applicable Margin in respect of any Class of Extended Revolving Credit Commitments or any Extended Term Loans or Revolving Credit Loans made pursuant to any Extended Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (c) the Applicable Margin in respect of any Class of Additional Revolving Credit Commitments, any Class of Incremental Loans, or any Class of Loans in respect of Additional Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Joinder Agreement, (d) the Applicable Margin in respect of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth in the relevant agreement, (e) the Applicable Margin in respect of any Class of New Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant agreement, and (f) in the case of the Term Loans and any Class of Incremental Loans, the Applicable Margin shall be increased as, and to the extent, necessary to comply with Section 2.14.
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the First Lien Net Leverage Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received interest payments for any period based on an Applicable Margin that is less than that which would have been applicable had the First Lien Net Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the Applicable Margin for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined First Lien Net Leverage Ratio for such period, and any shortfall in the interest theretofore paid by the applicable Borrower for the relevant period as a result of the miscalculation of the First Lien Net Leverage Ratio shall be deemed to be (and shall be) due and payable, at the time the interest for such period were required to be paid; provided that notwithstanding the foregoing, so long as an Event of Default described in Section 11.5 has not occurred with respect to the applicable Borrower, such shortfall shall be due and payable within five Business Days following the written demand therefor by the Administrative Agent and no Default or Event of Default shall be deemed to have occurred as a result of such non-payment until the expiration of such five Business Day period. In addition, at the option of the applicable Required Facility Lenders at any time during which the Parent Borrower or Holdings shall have failed to deliver any of the Section 9.1 Financials by the date required under Section 9.1, then the First Lien Net Leverage Ratio shall be deemed to be in Level I Status for the purposes of determining the Applicable Margin (but only for so long as such failure continues, after which such ratio shall be determined based on the then existing First Lien Net Leverage Ratio).
Approved Fund shall mean 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, advises or manages a Lender.
Asset Sale” shall mean:
(i)    the sale, conveyance, transfer, or other disposition, in each case, which results in the permanent disposition of the subject property, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale Leaseback) (each a “disposition”) of the Parent Borrower or any Restricted Subsidiary, or
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(ii)    the issuance or sale of Equity Interests of any Restricted Subsidiary (other than preferred stock of Restricted Subsidiaries issued in compliance with Section 10.1), whether in a single transaction or a series of related transactions, in each case, other than:
(a)    any disposition of cash, Cash Equivalents or Investment Grade Securities (or assets that were cash, Cash Equivalents or Investment Grade Securities when the original disposition was made), or any disposition of obsolete, worn out or surplus property or other property (including leasehold property interests) that, in the good faith determination of Parent Borrower, is no longer economically practical in its business or commercially desirable to maintain or no longer used or useful equipment (including any servers) in the ordinary course of business, or any disposition of inventory, goods held for sale, equipment or any other assets in the ordinary course of business;
(b)    mergers, consolidations, amalgamations, divisions, liquidations, windings up of, and conveyances, sales, leases, assignments, transfers and other dispositions of all or substantially all of the business units, assets or other properties of, the Parent Borrower and/or one or more Restricted Subsidiaries not prohibited by Section 10.3;
(c)    the incurrence of Liens that are permitted to be incurred pursuant to Section 10.2 or the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, pursuant to Section 10.5;
(d)    any disposition of property or assets of the Parent Borrower or any Restricted Subsidiary or issuance or sale of Equity Interests of any Restricted Subsidiary (i) in any transaction or series of related transactions with an aggregate Fair Market Value not exceeding the greater of $16,000,000 and 8.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period or (ii) with respect to all other dispositions and issuances not excluded pursuant to the preceding clause (i), with an aggregate Fair Market Value not exceeding the greater of $32,000,000 and 17.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period in any fiscal year of the Parent Borrower;
(e)    any disposition of property or assets or issuance of securities by (1) a Restricted Subsidiary to Holdings or the Parent Borrower or (2) the Parent Borrower or a Restricted Subsidiary to another Restricted Subsidiary;
(f)    to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon);
(g)    dispositions of Capital Stock of, or sales of Indebtedness or other securities of, Unrestricted Subsidiaries (or any Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that such Restricted Subsidiary owns no other material assets other than Capital Stock or Indebtedness or other securities of one or more Unrestricted Subsidiaries);
(h)    dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings (including in lieu thereof) or any similar proceeding;
(i)    dispositions of accounts receivable or other Receivables Facility Assets, or participations therein, and related assets in connection with any Receivables Facility;
(j)    any financing transaction with respect to property or assets built or acquired by the Parent Borrower or any Restricted Subsidiary after the Closing Date, including Sale Leasebacks and asset securitizations permitted by this Agreement;
(k)    (1) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims, (2) the termination or collapse of cost sharing agreements with Holdings, the Parent Borrower or any Subsidiary and the settlement of any crossing payments in connection therewith, or (3) the settlement, discount, write off,
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forgiveness, or cancellation of any Indebtedness owing by any present or former consultants, directors, officers, or employees of the Parent Borrower (or any Parent Entity of the Parent Borrower) or any Subsidiary or any of their successors or assigns;
(l)    the disposition or discount of inventory, accounts receivable, notes receivable, rights to payment or other current assets or, in each case, participations therein, in the ordinary course of business or the conversion of accounts receivable to notes receivable, or other dispositions of accounts receivable or rights to payment in connection with the collection or compromise thereof (including in connection with bona fide disputes with respect thereto) or as part of any bankruptcy or reorganization process (including any discount or forgiveness in connection with the foregoing);
(m)    the licensing or sub-licensing of Intellectual Property (whether pursuant to franchise agreements or otherwise) either by or to Holdings, the Parent Borrower or any Restricted Subsidiary in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Parent Borrower or any Restricted Subsidiary;
(n)    the termination or unwinding of any Hedging Obligations or obligations in respect of Cash Management Services;
(o)    sales, transfers, and other dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell, put/call or similar arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(p)    the lapse or abandonment of Intellectual Property rights in the ordinary course of business, which in the reasonable business judgment of the Parent Borrower are not material to the conduct of the business of the Parent Borrower and the Restricted Subsidiaries taken as a whole;
(q)    the issuance, sale or other disposition of Capital Stock for purposes of satisfying requirements with regard to directors’ qualifying shares and shares issued to foreign nationals as required by applicable Requirements of Law or any disposition or issuance of Capital Stock made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law;
(r)    dispositions of property or assets to the extent that (1) such property or asset is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (2) the proceeds of such Asset Sale are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);
(s)    dispositions and/or terminations of, or constituting, leases, assignments, subleases, licenses, sublicenses or cross-licenses (including the provision of software under any open source license), the dispositions or terminations of which (i) do not materially interfere with the business of the Parent Borrower and its Restricted Subsidiaries, taken as a whole, (ii) relate to closed facilities or the discontinuation of any product line or (iii) are made in the ordinary course of business;
(t)     (I) dispositions of non-core property or assets (including Capital Stock) and sales of real estate assets, in each case acquired in any acquisition or other Investment permitted hereunder or (II) dispositions (x) made with the approval (or to obtain the approval) of any anti-trust authority or otherwise necessary or advisable in the good faith determination of the Parent Borrower to consummate any acquisition or other Investment permitted hereunder or (y) which, within 120 days of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Parent Borrower or any of its Restricted Subsidiaries or any of their respective businesses;
(u)    dispositions constituting any part of a Permitted Reorganization;
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(v)     dispositions of property or assets that do not constitute Collateral with an aggregate Fair Market Value not to exceed in any fiscal year of the Parent Borrower the greater of $19,000,000 and 10.0% of Consolidated EBITDA for the most recently ended Test Period (with unused amounts in any fiscal year being carried over to subsequent fiscal years or carried back to the immediately preceding fiscal year (until so applied));
(w)    other dispositions of property or assets with a Fair Market Value not to exceed, in the aggregate, the greater of $29,000,000 and 15.0% of Consolidated EBITDA for the most recently ended Test Period;
(x)    dispositions of property or assets or issuance of securities by the Parent Borrower and any Restricted Subsidiary that, if otherwise structured as an Investment or Restricted Payment, would be Investments and/or Restricted Payments (as applicable) that would be permitted under and made in accordance with Section 10.5 (and shall constitute a usage of any such exception);
(y)    any disposal of assets in order to comply with the requirements of section 7f of the Fourth Book of the German Social Code (Sozialgesetzbuch IV) or section 4 of the German Company Pensions Act (Gesetz zur Verbesserung der betrieblichen Altersversorgung);
(z)    with respect to any real estate located in Germany, any disposal of real estate to the extent such disposal cannot be restricted pursuant to section 1136 (alone or in conjunction with section 1192 paragraph 1) of the German Civil Code;
(aa)    Sale Leasebacks so long as (i) the Parent Borrower is compliant with the applicable ratio for the incurrence of Ratio Debt on a Pro Forma Basis, (ii) any related Indebtedness is permitted by Section 10.1(d) or (iii) the Fair Market Value of assets sold does not exceed the greater of $29,000,000 and 15.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(bb) (i) any termination of any lease, sublease, license or sublicense in the ordinary course of business (and any related disposition of improvements made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(cc)     dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(dd)     dispositions of real estate assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of the Parent Borrower (or any Parent Entity thereof) and/or any Restricted Subsidiary;
(ee)     any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(ff)     dispositions contemplated on the Closing Date and described on Schedule 10.4 hereto;
(gg)    any netting arrangement of accounts receivable, or other cash management arrangements, between or among the Parent Borrower and its Restricted Subsidiaries or among Restricted Subsidiaries of the Parent Borrower made in the ordinary course of business; and
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(hh)    any “fee in lieu” or other disposition of assets to any Governmental Authority that continue in use by the Parent Borrower or any Restricted Subsidiary, so long as the Parent Borrower or any Restricted Subsidiary may obtain title to such asset upon reasonable notice by paying a nominal fee.
Asset Sale Prepayment Event shall mean any Asset Sale by the Parent Borrower or any Restricted Subsidiary pursuant to Section 10.4; provided, further, that with respect to any Asset Sale Prepayment Event, the Borrowers shall not be obligated to make any prepayment otherwise required by Section 5.2 unless and until (i) the aggregate amount of Net Cash Proceeds from any individual Asset Sale Prepayment Event exceeds the greater of $16,000,000 and 8.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period and (ii) to the extent not excluded pursuant to the preceding clause (i), the aggregate amount of other Net Cash Proceeds of Asset Sale Prepayment Events exceeds the greater of $32,000,000 and 17.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period in any fiscal year of the Parent Borrower.
Assignment and Acceptance shall mean (i) an assignment and acceptance substantially in the form of Exhibit F, or such other form as may be approved by the Administrative Agent and (ii) in the case of any assignment of Term Loans in connection with a Permitted Debt Exchange conducted in accordance with Section 2.15, such form of assignment (if any) as may be agreed by the Administrative Agent and the Parent Borrower in accordance with Section 2.15(a).
Auction Agent” shall mean (i) the Administrative Agent or (ii) any other financial institution or advisor employed by Holdings, the Parent Borrower, or any Subsidiary (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Permitted Debt Exchange pursuant to Section 2.15 or any Dutch auction pursuant to Section 13.6(h); provided that the Parent Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that none of Holdings, the Parent Borrower nor any of their Affiliates may act as the Auction Agent.
Authorized Officer shall mean, with respect to any Person, any individual holding the position of chairman of the board (if an officer), any executive officer, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, the Controller, the Vice President-Finance, a Senior Vice President, a Director, a Manager, or any other senior officer or agent with express authority to act on behalf of such Person designated as such by the board of directors or other managing authority of such Person.
Auto-Extension Letter of Credit” shall have the meaning provided in Section 3.2(d).
Available Amount” shall mean, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:
(a)    the greater of $48,000,000 and 25.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, plus
(b)    the CNI Growth Amount at such time, plus
(c)    (i) the cumulative amount of cash and Cash Equivalent proceeds from, and the Fair Market Value of any other asset or property received in respect of, the sale of Equity Interests or issuance of any Subordinated Shareholder Debt (other than Disqualified Stock of the Parent Borrower or as part of any Excluded Contribution) of Holdings, the Parent Borrower or any Parent Entity (other than the issuance of Equity Interests or Subordinated Shareholder Debt to
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the Parent Borrower or a Restricted Subsidiary) after the Closing Date and on or prior to such time (including upon exercise of warrants or options) which proceeds have been contributed to the capital of, or loaned in the form of Subordinated Shareholder Debt to, the Parent Borrower or any Restricted Subsidiary and (ii) the aggregate principal amount of Indebtedness (other than Indebtedness that is contractually subordinated in right of payment to the Obligations) of the Parent Borrower or any Restricted Subsidiary owed to a Person other than a Credit Party or a Restricted Subsidiary of a Credit Party converted to Equity Interests or Subordinated Shareholder Debt of Holdings, the Parent Borrower or any Parent Entity (other than Disqualified Stock of the Parent Borrower), together with the Fair Market Value of any other asset or property received by the Parent Borrower or a Restricted Subsidiary (other than from the Parent Borrower or another Restricted Subsidiary) in respect of such conversion, in each case not previously applied for a purpose other than use in the Available Amount, plus
(d)    100% of the aggregate amount of capital contributions in respect of Qualified Stock of the Parent Borrower received in cash and Cash Equivalents, and the Fair Market Value of any such capital contributions received in the form of any other asset or property, after the Closing Date, to the extent not previously applied for a purpose other than use in the Available Amount, plus
(e)    100% of the aggregate amount received by the Parent Borrower or any Restricted Subsidiary in cash and Cash Equivalents from:
(A)    the sale (other than to Holdings, the Parent Borrower or any Restricted Subsidiary) of the Equity Interests of an Unrestricted Subsidiary, or
(B)    any dividend, distribution or other return (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) by an Unrestricted Subsidiary, plus
(f)    in the event any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary or any Unrestricted Subsidiary, joint venture vehicle or minority investment vehicle has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Parent Borrower or a Restricted Subsidiary, the Fair Market Value of the Investments of the Parent Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary, joint venture vehicle or minority investment vehicle at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable), so long as such Investments were originally made pursuant to Section 10.5(b)(xiv) and clause (xiii)(b) of the definition of Permitted Investments, plus
(g)    an amount equal to any dividend, distribution or other return in cash and Cash Equivalents (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the Parent Borrower or any Restricted Subsidiary in respect of any Investments made pursuant to Section 10.5(b)(xiv) and clause (xiii)(b) of the definition of Permitted Investments, plus
(h)     the aggregate amount of any Retained Declined Proceeds since the Closing Date and the aggregate amount of any Retained Asset Sale Proceeds, plus
(i)     without duplication, an amount equal to the Fair Market Value of any assets (including cash or Cash Equivalents) or other property of any Parent Entity that has been transferred to the Parent Borrower or any of its Restricted Subsidiaries, plus
(j)    the sum of the amounts calculated pursuant to clauses (c), (d), (e), (f), (g) and (i) of the definition of “Available Amount” set forth in the Existing Debt Facility as of the Closing Date, minus
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(k)    any amount of the Available Amount used to make Investments pursuant to clause (xiii)(b) of the definition of Permitted Investments after the Closing Date and prior to such date, minus
(l)    any amount of the Available Amount used to pay Restricted Payments pursuant to Section 10.5(b)(xiv) after the Closing Date and prior to such date.
Available Commitment” shall mean an amount equal to the excess, if any, of (i) the amount of the Total Revolving Credit Commitment over (ii) the sum of the aggregate principal amount of (a) all Revolving Credit Loans then outstanding, (b) the aggregate Letters of Credit Outstanding at such time and (c) the aggregate amount of Ancillary Outstandings at such time.
Available Credit Balance” shall mean, with respect to any Ancillary Facility, any credit balances on any account of any Borrower of such Ancillary Facility with the Ancillary Lender making available such Ancillary Facility to the extent that those credit balances are freely available to be set off by such Ancillary Lender against liabilities owed to it by the applicable Borrower under such Ancillary Facility.
Available Currencies” shall mean Dollars, Euros, Pounds Sterling and other currencies requested by the Parent Borrower in accordance with Section 1.14 and as agreed to by the Administrative Agent and each Revolving Credit Lender, and to the extent Letters of Credit are requested or are to be made available in such currencies, the Letter of Credit Issuer.
Available Tenor” shall mean as of any date of determination and with respect to the then-current USD Benchmark, as applicable, (x) if the then-current USD Benchmark is a term rate, any tenor for such USD Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such USD Benchmark, as applicable, pursuant to this Agreement as of such date.
Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their Affiliates (other than through liquidation, administration or other insolvency proceedings).
Bankruptcy Code shall have the meaning provided in Section 11.5(a).
Basel III” shall mean (A) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; (B) the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and (C) any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.
Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
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Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
Benefited Lender” shall have the meaning provided in Section 13.8(a).
Board” shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
Borrower Materials” shall have the meaning provided in Section 13.17(b).
Borrowers” shall have the meaning provided in the preamble to this Agreement.
Borrowing” shall mean Loans of the same Class and Type, made, converted, or continued on the same date and, in the case of Term SOFR Loans or Eurocurrency Loans, as to which a single Interest Period is in effect.
Borrowing Multiple shall mean (i) with respect to a Borrowing of EurocurrencyTerm SOFR Loans (1) in Dollars, $100,000 or (2) in Euro, €50,000, (ii) with respect to a Borrowing of Eurocurrency Loans in Euro, €50,000, (iii) with respect to a Borrowing of RFR Loans in Pounds Sterling, £50,000, (iiiiv) with respect to a Borrowing of ABR Loans, $100,000 and (ivv) otherwise, as mutually agreed by the Parent Borrower and the Administrative Agent (or in any case of this definition, if less, the entire remaining applicable Commitments at the time of such Borrowing).
Business Day shall mean any day excluding Saturday, Sunday, and any other day on which banking institutions in New York City are authorized by law or other governmental actions to close, and (i) if such day relates to any interest rate settings as to a Eurocurrency Loan denominated in Dollars, any fundings, disbursements, settlements, and payments in respect of any such Eurocurrency Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Loan, such day shall be a day on which dealings in deposits in Dollars are conducted by and between banks in the applicable London interbank marketnotice, determination, funding or payment in connection with SOFR or any Term SOFR Loans, such day must also be a U.S. Government Securities Business Day; (ii) if such day relates to any interest rate settings as to a Eurocurrency Loan denominated in Euros, any fundings, disbursements, settlements and payments in Euros in respect of any such Eurocurrency Loan, or any other dealings in Euros to be carried out pursuant to this Agreement in respect of any such Eurocurrency Loan, such day must also be a TARGET Day; and (iii) when used in connection with a RFR Loan denominated in Pounds Sterling, including any interest rate settings as to any such RFR Loan, any fundings, disbursements, settlements and payments in Pounds Sterling in respect of any such RFR Loan, or any other dealings in Pounds Sterling to be carried out pursuant to this Agreement in respect of any such RFR Loan, the term “Business Day” shall also exclude days banks are closed for general business in London because such day is a Saturday, Sunday or a day on which banks are closed for general business in London.
Capital Expenditures shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Finance Leases) by the Parent Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant, or equipment reflected in the consolidated balance sheet of the
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Parent Borrower and the Restricted Subsidiaries (including capitalized software expenditures, customer acquisition costs and incentive payments, conversion costs, and contract acquisition costs).
Capital Stock” shall mean (i) in the case of a corporation, corporate stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights, or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited), and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person (it being understood and agreed, for the avoidance of doubt, that “cash-settled phantom appreciation programs” in connection with employee benefits that do not require a dividend or distribution shall not constitute Capital Stock).
Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Letter of Credit Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the Letter of Credit Issuer shall agree in their sole discretion, other credit support, in an amount equal to 101% of the amount of L/C Obligations required to be Cash Collateralized. “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” shall mean:
(i)    Dollars,
(ii)    (a) Euro, Pounds Sterling, Canadian Dollars, or any national currency of any Participating Member State in the European Union or (b) local currencies held from time to time in the ordinary course of business,
(iii)    securities issued or directly and fully and unconditionally guaranteed or insured by the United States government, Canadian Government or any country that is a member state of the European Union or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition,
(iv)    certificates of deposit, time deposits, and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year, and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 (or the Dollar Equivalent as of the date of determination) in the case of foreign banks,
(v)    repurchase obligations for underlying securities of the types described in clauses (iii), (iv), and (ix) entered into with any financial institution meeting the qualifications specified in clause (iv) above,
(vi)    commercial paper rated at least “P-2” by Moody’s or at least “A-2” by S&P and in each case maturing within 24 months after the date of creation thereof,
(vii)    marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized ratings agency) and in each case maturing within 24 months after the date of creation or acquisition thereof,
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(viii)    readily marketable direct obligations issued by the federal government, any state, commonwealth, or territory of the United States or the federal government or any province or territory of Canada, in each case, any political subdivision or taxing authority thereof having one of the two highest rating categories obtainable from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition,
(ix)    Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition,
(x) solely with respect to any Foreign Subsidiary: (a) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (b) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from the date of acquisition, and (c) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank, in each case, customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by such Foreign Subsidiary organized (or incorporated) in such jurisdiction,
(xi) in the case of investments by any Foreign Subsidiary or investments made in a country outside the United States, Cash Equivalents shall also include investments of the type and maturity described in clauses (i) through (ix) above of foreign obligors, which investments have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies, and
(xii)    investment funds investing 90% of their assets in securities of the types described in clauses (i) through (ix) above.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (i) and (ii) above; provided that such amounts are converted into any currency listed in clauses (i) and (ii) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
Cash Management Agreement” shall mean any agreement or arrangement to provide Cash Management Services.
Cash Management Bank” shall mean (i) at the Parent Borrower’s election from time to time by written notice to the Administrative Agent substantially in the form of Exhibit M-2 or such other form reasonably acceptable to the Administrative Agent, each Revolving Credit Lender as of the Closing Date and each of JPMorgan Chase Bank, N.A., Bank of America, N.A., Royal Bank of Canada, Morgan Stanley Bank, N.A., HSBC Bank, N.A. and Deutsche Bank AG or any Affiliate of any such Person, (ii) any Person that, at the time it enters into a Cash Management Agreement, is an Agent or a Lender or an Affiliate of an Agent or a Lender, (iii) with respect to any Cash Management Agreement entered into prior to the Closing Date, any Person that is an Agent or a Lender or an Affiliate of an Agent or a Lender on the Closing Date or (iv) another bank reasonably acceptable to the Administrative Agent, if designated by the Parent Borrower as a “Cash Management Bank” by written notice to the Administrative Agent
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substantially in the form of Exhibit M-2 or such other form reasonably acceptable to the Administrative Agent.
Cash Management Services” shall mean any one or more of the following types of services or facilities: (i) commercial credit cards, merchant card services, purchase or debit cards, including non-card e-payables services, or electronic funds transfer services, (ii) treasury management services (including controlled disbursement, overdraft automatic clearing house fund transfer services, return items, and interstate depository network services) and (iii) any other demand deposit or operating account relationships or other cash management services, including pursuant to any Cash Management Agreements.
Casualty Event” shall mean, with respect to any property of the Parent Borrower or any Restricted Subsidiary, any loss of or damage to, or any condemnation or other taking by a Governmental Authority of, such property for which such Person receives insurance proceeds or proceeds of a condemnation award in respect of any equipment, fixed assets, or real property (including any improvements thereon) to replace or repair such equipment, fixed assets, or real property; provided, further, that with respect to any Casualty Event, the Borrowers shall not be obligated to make any prepayment otherwise required by Section 5.2 unless and until (i) the aggregate amount of Net Cash Proceeds from any individual Casualty Event exceeds the greater of $16,000,000 and 8.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period and (ii) to the extent not excluded pursuant to the preceding clause (i), the aggregate amount of other Net Cash Proceeds of Casualty Events exceeds the greater of $32,000,000 and 17.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period in any fiscal year of the Parent Borrower.
CFC” shall mean any Subsidiary of the Parent Borrower that is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.
CFC Holding Company” shall mean any Subsidiary of a Borrower that has no material assets other than Capital Stock and Indebtedness of one or more Subsidiaries that are CFCs and/or one or more Subsidiaries that are CFC Holding Companies and, in either case, cash, Cash Equivalents and other incidental assets related thereto.
Change in Law” shall mean (i) the adoption of any law, treaty, order, policy, rule, or regulation after the Closing Date (or, if later, the date upon which the relevant Lender became a party to this Agreement), (ii) any change in any law, treaty, order, policy, rule, or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date (or, if later, the date upon which the relevant Lender became a party to this Agreement) or (iii) compliance by any Lender with any guideline, request, directive, or order issued or made after the Closing Date (or, if later, the date upon which the relevant Lender became a party to this Agreement) by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law), including, for avoidance of doubt any adoption, change or compliance in respect of (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, or directives thereunder or issued in connection therewith and (b) all requests, rules, guidelines, requirements, or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority), or the United States or foreign regulatory authorities pursuant to Basel III regardless of the date enacted, adopted or issued.
Change of Control” shall mean and be deemed to have occurred if (i) any Person, entity, or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than the Permitted Holders, any employee benefit plan and any person acting as the trustee, agent or other fiduciary or administrator of such plan or any underwriter, shall at any time have acquired direct or indirect beneficial ownership of a
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percentage of the voting power of the outstanding Voting Stock of Holdings or a Parent Entity that exceeds the greater of 40.0% and the percentage then beneficially owned, directly or indirectly by the Permitted Holders, unless the Permitted Holders have, at such time, the right or the ability by voting power, contract, or otherwise to elect or designate for election at least a majority of the board of directors of Holdings or a Parent Entity or (ii) Holdings shall cease to beneficially own, directly or indirectly, 100% of the issued and outstanding Capital Stock of the Parent Borrower or the Subsidiary Borrower (excluding during the pendency of any Permitted Reorganization).
Notwithstanding the preceding clauses or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall be deemed not to beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of Holdings or a Parent Entity owned, directly or indirectly, by any Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued and outstanding Voting Stock owned, directly or indirectly, by such group, (iii) a passive holding company or special purpose acquisition vehicle or a Subsidiary thereof that is a passive holding company shall not be considered a “Person” and instead the equityholders of such passive holding company or special purpose acquisition vehicle (other than any other passive holding company or special purpose acquisition vehicle) shall be considered and (iv) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of the Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless (A) it owns 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors or board of managers of such parent entity and (B) such directors or managers elected by the Person or group have a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.
Citi” shall have the meaning provided in the preamble to this Agreement.
Class” (i) when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit Loans, Additional Revolving Credit Loans, New Revolving Credit Loans, Initial Term Loans, New Term Loans (of each Series), Extended Term Loans (of the same Extension Series), Replacement Term Loans (of the same Series), or Extended Revolving Credit Loans (of the same Extension Series) and (ii) when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, an Additional Revolving Credit Commitment, a New Revolving Credit Commitment, an Extended Revolving Credit Commitment (of the same Extension Series), an Initial Term Loan Commitment, or a New Term Loan Commitment.
Closing Date” shall mean the date on which the conditions precedent set forth in Section 6 shall have been satisfied, which date is October 20, 2021.
Closing Date Refinancing” shall mean the repayment, repurchase, redemption, defeasance or other discharge of the Existing Debt Facility and the termination and/or release of all commitments to extend credit thereunder and the termination and/or release of all security interests and guarantees in connection therewith.
CNI Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated Net Income of the Parent Borrower and
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the Restricted Subsidiaries for the cumulative period from the first day of the fiscal quarter of the Parent Borrower during which the Closing Date occurs to and including the last day of the most recently ended fiscal quarter of the Parent Borrower prior to such date for which Section 9.1 Financials have been delivered or, at the Parent Borrower’s election, are internally available (treated as one accounting period).
Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
Collateral” shall mean all property pledged, charged, assigned or mortgaged or purported to be pledged, charged, assigned or mortgaged pursuant to the Security Documents, excluding in all events Excluded Property.
Collateral Agent” shall mean Citi, as collateral agent under the Security Documents, or any successor collateral agent appointed pursuant to Section 12.9, and any Affiliate or designee of Citi may act as the Collateral Agent under any Credit Document.
Collateral and Guarantee Principles” shall have the meaning provided in Section 1.17.
Commitment Fee” shall have the meaning provided in Section 4.1(a).
Commitment Fee Rate” shall mean a rate per annum set forth below opposite the Status in effect on such day:
Status
Commitment Rate
Level I Status
0.50%
Level II Status
0.375%
Level III Status
0.250%
Notwithstanding the foregoing, the term Commitment Fee Rate shall mean 0.50% during the period from and including the Closing Date to but excluding the first day following the date on which Section 9.1 Financials are delivered to the Administrative Agent for the first full fiscal quarter ending after the Closing Date.
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the First Lien Net Leverage Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received fees for any period based on a Commitment Fee Rate that is less than that which would have been applicable had the First Lien Net Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the Commitment Fee Rate for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined First Lien Net Leverage Ratio for such period, and any shortfall in the fees theretofore paid by the applicable Borrower for the relevant period as a result of the miscalculation of the First Lien Net Leverage Ratio shall be deemed to be (and shall be) due and payable, at the time the fees for such period were required to be paid; provided that notwithstanding the foregoing, so long as an Event of Default described in Section 11.5 has not occurred with respect to the applicable Borrower, such shortfall shall be due and payable within
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five Business Days following the written demand therefor by the Administrative Agent and no Default shall be deemed to have occurred as a result of such non-payment until the expiration of such five Business Day period. In addition, at the option of the Required Revolving Credit Lenders at any time during which the Parent Borrower or Holdings shall have failed to deliver any of the Section 9.1 Financials by the date required under Section 9.1, then the First Lien Net Leverage Ratio shall be deemed to be in Level I Status for the purposes of determining the Commitment Fee Rate (but only for so long as such failure continues, after which such ratio shall be determined based on the then existing First Lien Net Leverage Ratio).
Commitments” shall mean, with respect to each Lender (to the extent applicable), such Lender’s Revolving Credit Commitment, New Revolving Credit Commitment, Extended Revolving Credit Commitment, Additional Revolving Credit Commitment, Initial Term Loan Commitment, or New Term Loan Commitment.
Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Communications shall have the meaning provided in Section 13.17.
Company” shall have the meaning provided in the preamble to this Agreement.
Compliance Certificate” shall mean a certificate of a responsible financial or accounting officer of Holdings or the Parent Borrower delivered pursuant to Section 9.1(d) for the applicable Test Period.
Compliance Condition” shall mean, as of any date of determination, without duplication, the Dollar Equivalent of the aggregate principal amount of all Revolving Credit Loans outstanding at such time (excluding, for the first two full fiscal quarters following the date set forth in the proviso hereto, Revolving Credit Loans borrowed on the Closing Date) exceeds 40.0% of the amount of the Total Revolving Credit Commitment; provided that notwithstanding the foregoing, no Compliance Condition shall be in effect with respect to quarterly Test Periods ending prior to June 30, 2022.
Confidential Information” shall have the meaning provided in Section 13.16.
Consolidated Depreciation and Amortization Expense” shall mean with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees, and expenses, capitalized expenditures, customer acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and incentive payments, conversion costs, and contract acquisition costs of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
Consolidated EBITDA” shall mean, with respect to any Person for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period:
(i)    increased (without duplication and to the extent not already included in the calculation of Consolidated Net Income) by:
(a)    taxes paid and any provision for taxes based on income or profits or capital, including, without limitation, U.S. federal, state or non-U.S. franchise, excise, value added, and similar taxes and foreign withholding taxes of such Person paid or accrued during such period, including any penalties and interest related to such taxes or arising from any tax examinations, that are deducted (and not added back) in computing Consolidated Net Income, plus
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(b)    Fixed Charges of such Person for such period (including (1) net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (2) costs of surety bonds in connection with financing activities, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of Consolidated Interest Expense and any non-cash interest expense, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income, plus
(c)    Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted in computing Consolidated Net Income, plus
(d)    [reserved], plus
(e)    any other non-cash charges, including any write offs, write downs, expenses, losses, or items to the extent the same were deducted (and not added back) in computing Consolidated Net Income (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be deducted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period), plus
(f)    the amount of any non-controlling or minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-Wholly-Owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(g)    the amount of board of directors, management, monitoring, consulting, and advisory fees (including termination fees) and related indemnities and expenses paid or accrued in such period to the Initial Investors or any of their respective Affiliates, plus
(h)    costs of surety bonds (and similar instruments) incurred in such period in connection with financing activities, plus
(i)    at the option of such Person, the amount of “run-rate” cost savings, operating expense reductions, operational improvements and synergies (“Expected Cost Savings”) that are reasonably identifiable and projected by the Parent Borrower in good faith to result from actions either taken or with respect to which substantial steps have been taken or expected to be taken (in the good faith determination of the Parent Borrower) within 36 months of the determination to take such action (including, without limitation, (1) cost savings, operating expense reductions, operational improvements and synergies related to the Transactions, mergers or other business combinations, acquisitions, investments, divestitures (including the termination or discontinuance of activities constituting a business line), operating improvements, restructurings, cost savings initiatives and other similar initiatives, in each case after or on the Closing Date and (2) cost savings, operating expense reductions, operational improvements synergies and other adjustments contemplated by the Transaction Agreement or identified to the Joint Lead Arrangers prior to the Closing Date, including in the Model, any management presentation, any confidential information memorandum or the QofE (and including in respect of any action taken on or prior to the Closing Date (or thereafter))), net of the amount of actual benefits realized prior to or during such period from such actions (which cost savings, operating expense reductions, operational improvements and synergies shall be calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, operational improvements or synergies had been realized on the first day of such period), plus
(j)    the amount of loss or discount on sale of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility, plus
(k)    at the option of such Person, the amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not included in Consolidated Net Income for such period; it being understood that if such revenue is added back
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in calculating Consolidated EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually recognized, plus
(l)    [reserved], plus
(m)    [reserved], plus
(n)    costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Public Company Costs, plus
(o)    cash receipts (or any netting arrangements resulting in reduced cash expenses) not included in Consolidated EBITDA in any period solely to the extent that the corresponding non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (ii) below for any previous period and not added back, plus
(p)    [reserved], plus
(q)    adjustments and add-backs set forth on Schedule 1.1(f), plus
(r)     [reserved], plus
(s)    earn-out and consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments, in each case in connection with acquisitions or investments;
(ii)    decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period other than non-cash gains relating to the application of Financial Accounting Standards Codification Topic 840— Leases (formerly Financial Accounting Standards Board Statement No. 13); provided that, to the extent non cash gains are deducted pursuant to this clause (ii) for any previous period and not otherwise added back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non cash gains received in subsequent periods to the extent not already included therein, plus
(iii)    increased or decreased by (without duplication):
(a)    any net gain or loss resulting in such period from currency gains or losses related to Indebtedness, intercompany balances, and other balance sheet items, plus or minus, as the case may be, and
(b)    any net gain or loss resulting in such period from Hedging Obligations, and the application of Financial Accounting Standards Codification Topic 815—Derivatives and Hedging (ASC 815) (formerly Financing Accounting Standards Board Statement No. 133), and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in lieu of GAAP.
For the avoidance of doubt, to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period (A) any adjustments resulting from the application of ASC 815 and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in lieu of GAAP and (B) the impact of changes in the fair value of warrant liabilities or similar liabilities. In addition, the Parent Borrower may elect to disregard adjustments to Consolidated EBITDA that are, in the good faith determination of the Parent Borrower, immaterial; provided
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that any such immaterial adjustments do not, in the good faith estimation of the Parent Borrower, exceed $500,000 in the aggregate for any applicable Test Period.
Consolidated First Lien Secured Debt shall mean, as of any date of determination, Consolidated Total Debt as of such date secured by a Lien on the Collateral on an equal priority basis (but without regard to the control of remedies) with liens on the Collateral securing the Obligations.
Consolidated Interest Expense” shall mean, with respect to any Person for any period, the sum, without duplication, of:
(i)    consolidated cash interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) all commissions, discounts, and other fees and charges owed with respect to letters of credit or bankers acceptances, (b) capitalized interest to the extent paid in cash (or accrued and payable in cash), and (c) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (1) any one-time cash costs associated with breakage in respect of hedging agreements for interest rates, (2) all non-recurring interest expense consisting of liquidated damages or “additional interest” for failure to timely comply with registration rights obligations, all as calculated on a consolidated basis in accordance with GAAP, (3) non-cash interest expense attributable to a parent entity resulting from push-down accounting, but solely to the extent not reducing consolidated cash interest expense in any prior period, (4) any expensing of bridge, commitment, arrangement, structuring, fronting and other financing fees, but solely to the extent not reducing consolidated cash interest expense in any prior period, (5) commissions, discounts, yield, and other fees and charges (including any interest expense) related to any Receivables Facility), (6) amortization, accretion or accrual of deferred financing fees or costs, original issue discount, debt issuance costs, discounted liabilities, commissions, fees and expenses (including agency costs, amendment, consent or other front end, one-off or similar non-recurring fees), (7) any expenses resulting from discounting of Indebtedness in connection with the application of recapitalization accounting or purchase accounting, (8) the accretion or accrual of, or accrued interest on, discounted liabilities (other than Indebtedness) during such period, (9) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815-Derivatives and Hedging, (10) any payments with respect to make whole premiums, commissions or other breakage costs of any Indebtedness, (11) agency or trustee fees paid to the administrative agents and collateral agents or trustees under any credit facilities or other debt instruments or documents, (12) fees (including any ticking fees) and expenses (including any penalties and interest relating to Taxes), including those associated with any Investment not prohibited by Section 10 or the issuance of Equity Interests or Indebtedness (in each case excluding any bona fide interest expense) and (13) any interest expense attributable to the exercise of appraisal rights or other rights of dissenting shareholders and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto in connection with any acquisition or Investment not prohibited hereunder; less
(ii)    cash interest income of such Person and its Restricted Subsidiaries for such period.
For purposes of this definition, interest on a Finance Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Finance Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with GAAP).
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Consolidated Net Income shall mean, with respect to any Person for any period, the aggregate of the Net Income, of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided that, without duplication:
(i)    any after-tax effect of (A) extraordinary, non-recurring, special, exceptional or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including relating to the Transactions), (B) severance, relocation costs, curtailments, or modifications to pension and post-retirement employee benefits plans, facility start up, transition, integration, and other restructuring and business optimization costs, charges, reserves, or expenses (including related to acquisitions after the Closing Date and to the start-up, closure, and/or consolidation of facilities), one-time compensation charges, costs, charges or expenses relating to any audit by the U.S. Internal Revenue Service or other applicable Governmental Authority (including and costs or expenses in respect of any action or proceeding relating thereto) and (C) any restructuring, business optimization, cost savings, integration, startup costs, new product launches or related losses, expenses or charges (including any losses, expenses or charges relating to transitions, reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets, office or facility openings or closings, tax restructurings, systems implementation, new market entry, signing, completion or retention bonuses, new products, recruiting, lease run-off, expansion or relocation, software development, systems design, project implementation, expenses of underutilized personnel, new contracts or employee ramp-up) shall, in each case, be excluded,
(ii)    the Net Income for such period shall not include the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period,
(iii)    any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed, or discontinued operations shall be excluded,
(iv)    any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments other than in the ordinary course of business, as determined in good faith by the Parent Borrower, shall be excluded,
(v)    the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Parent Borrower shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or Cash Equivalents) to the Parent Borrower or a Restricted Subsidiary thereof in respect of such period,
(vi)    effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements required or permitted by Financial Accounting Standards Codification Topic 805 – Business Combinations and Topic 350 – Intangibles-Goodwill and Other (ASC 805 and ASC 350) (formerly Financial Accounting Standards Board Statement Nos. 141 and 142, respectively) resulting from the application of purchase accounting, including in relation to the Transactions and any acquisition that is consummated after the Closing Date or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
(vii)    (a) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid), (b) any non-cash income (or loss) related to currency gains or losses related to Indebtedness, intercompany balances, and other balance sheet items and to Hedging Obligations pursuant to ASC 815 (or such successor provision), and (c) any non-cash expense, income, or loss attributable to the movement in mark to market valuation of foreign currencies, Indebtedness, or derivative instruments pursuant to GAAP, shall be excluded,
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(viii)    any impairment charge, asset write-off, or write-down pursuant to ASC 350 and Financial Accounting Standards Codification Topic 360 – Impairment and Disposal of Long-Lived Assets (ASC 360) (formerly Financial Accounting Standards Board Statement Nos. 142 and 144, respectively) and the amortization of intangibles arising pursuant to ASC 805 shall be excluded,
(ix)    (a) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, phantom equity, stock options units, restricted stock, or other rights to officers, directors, managers, or employees and (b) non-cash income (loss) attributable to deferred compensation plans or trusts, shall be excluded,
(x)    any fees, expenses, charges or losses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, recapitalization, Asset Sale, disposition, issuance or repayment of Indebtedness, recapitalization, Restricted Payment, issuance of Equity Interests, offering of securities, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction proposed or consummated prior to the Closing Date and any such transaction whether or not consummated), including (1) such fees, expenses, or charges related to the incurrence of the Loans hereunder and all Transaction Expenses, (2) such fees, expenses, or charges related to the offering of the Credit Documents and any other credit facilities, and (3) any amendment or other modification of the Loans hereunder or other Indebtedness, and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall, in each case, be excluded,
(xi)    accruals and reserves (including contingent liabilities) that are established or adjusted within twelve months after the Closing Date that are so required to be established as a result of the Transactions in accordance with GAAP, or changes as a result of adoption or modification of accounting policies, shall be excluded,
(xii)    (A) any expenses and charges and charges that are reimbursed by indemnification or other similar provisions in connection with any investment or any sale, conveyance, transfer or other Asset Sale of assets permitted hereunder and (B) to the extent covered by insurance or indemnification and actually reimbursed, or, so long as the Parent Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is expected by the Parent Borrower in good faith to be reimbursed within 365 days of the date of the determination (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses, expenses and charges with respect to liability or casualty events or business interruption shall be excluded,
(xiii)    any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such items, shall be excluded,
(xiv)    (A) any accrual, loss, reserve or other charge associated with and/or payment of any actual or prospective dispute, legal settlement, fine, judgment or order shall be excluded and (B) any costs or expenses incurred during such period relating to environmental remediation,
(xv)    (A) 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, and any costs or expense incurred in connection with any pension plan, employee benefit scheme, distributor equity plan or any similar equity plan or agreement and (B) the amount of expenses relating to payments made to option holders of such Person or any Parent Entity or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Agreement, shall in each case be excluded, and
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(xvi)    earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments, including in connection with any acquisition or Investment permitted hereunder or in respect of any acquisition consummated prior to the Closing Date, shall in each case be excluded.
For the avoidance of doubt, there shall be excluded in determining Consolidated Net Income for any period (A) any adjustments resulting from the application of ASC 815 and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in lieu of GAAP and (B) the impact of changes in the fair value of warrant liabilities or similar liabilities. In addition, the Parent Borrower may elect to disregard adjustments to Consolidated Net Income that are, in the good faith determination of the Parent Borrower, immaterial; provided that any such immaterial adjustments do not, in the good faith estimation of the Parent Borrower, exceed $500,000 in the aggregate for any applicable Test Period.
Consolidated Secured Debt shall mean, as of any date of determination, Consolidated Total Debt as of such date secured by a Lien on the assets or property of the Parent Borrower or any Restricted Subsidiary.
Consolidated Total Assets shall mean, as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on the then most recent consolidated balance sheet of the Parent Borrower and the Restricted Subsidiaries delivered pursuant to Section 9.1.
Consolidated Total Debt” shall mean, as of any date of determination, an amount equal to the sum of the aggregate amount of all outstanding Indebtedness of the Parent Borrower and the Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Finance Lease Obligations and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt, Hedging Obligations); provided that Consolidated Total Debt shall not include Letters of Credit, except to the extent of Unpaid Drawings thereunder; provided, further, that “Consolidated Total Debt” (for all purposes hereunder, including as a component of other definitions) (i) shall exclude any obligation, liability or indebtedness of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness, and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included in the calculation of the Unrestricted Cash Amount for the purpose of netting against any ratio hereunder, (ii) shall exclude any obligation, liability or indebtedness of such Person to the extent to which such obligation, liability or indebtedness is subject to escrow arrangements or otherwise secured by cash and/or Cash Equivalents pending application to the purpose intended therefor, (iii) shall exclude obligations under any Indebtedness that is non-recourse to the Parent Borrower and/or its Restricted Subsidiaries and (iv) shall exclude obligations under any Non-Finance Lease Obligation.
Consolidated Working Capital” shall mean, at any date, the excess of (i) the sum of all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Parent Borrower and the Restricted Subsidiaries at such date excluding the current portion of current and deferred income taxes over (ii) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Parent Borrower and the Restricted Subsidiaries on such date, but excluding, without duplication, (a) the current portion of any Funded Debt, (b)
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all Indebtedness consisting of Loans and Letter of Credit Exposure and Finance Leases to the extent otherwise included therein, (c) the current portion of interest, (d) the current portion of current and deferred income taxes, (e) any liabilities that are not Indebtedness and will not be settled in cash or Cash Equivalents during the next succeeding twelve month period after such date, (f) the effects from applying purchase accounting, (g) any accrued professional liability risks, (h) restricted marketable securities and (i) current portion of deferred revenue.
Contingent Obligations” shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends, or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (iii) to purchase property, securities, or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
Contract Consideration” shall have the meaning provided in the definition of Additional ECF Prepayment Reduction Amounts.
Contractual Requirement shall have the meaning provided in Section 8.3.
Converted Restricted Subsidiary shall have the meaning provided in the definition of the term Pro Forma Basis.
Converted Unrestricted Subsidiary shall have the meaning provided in the definition of the term Pro Forma Basis.
Covered Affiliate” shall have the meaning provided in Section 13.1(k)(i).
Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
Covered Party” shall have the meaning provided in Section 13.24.
Credit Documents shall mean this Agreement, each Joinder Agreement, the Guarantees, the Security Documents, any Acceptable Intercreditor Agreement (if executed), the Intercompany Subordination Agreement, the Ancillary Documents, and any promissory notes issued by the Borrowers pursuant hereto.
Credit Event shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance of a Letter of Credit.
Credit Facilities” shall mean, collectively, each category of Commitments and each extension of credit hereunder.
Credit Facility” shall mean a category of Commitments and extensions of credit hereunder.
Credit Party shall mean Holdings, the Borrowers, and the other Guarantors.
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Cure Amount” shall have the meaning provided in Section 11.14.
Cure Right” shall have the meaning provided in Section 11.14.
Customary Term A Loans” shall mean any term loans that have terms and conditions determined by the Parent Borrower to be customary for “term A” loans; it being understood and agreed that term loans syndicated primarily to or funded primarily by Persons regulated as banks in the primary syndication thereof with scheduled annual amortization of at least 2.5% per annum are Customary Term A Loans.
Daily Simple RFR” means, for any day (an “RFR Interest Day”), an interest rate per annum equal to the greater of (a) SONIA for the day that is 5 Business Days prior to (A) if such RFR Interest Day is a Business Day, such RFR Interest Day or (B) if such RFR Interest Day is not a Business Day, the Business Day immediately preceding such RFR Interest Day and (b) any applicable Floor. Any change in Daily Simple RFR due to a change in SONIA shall be effective from and including the effective date of such change in SONIA without notice to the Borrowers.
Daily Simple RFR Loan shall mean any Loan bearing interest at a rate determined by reference to Daily Simple RFR.
Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in consultation with the Parent Borrower in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
Daily Simple SOFR Loan shall mean any Loan bearing interest at a rate determined by reference to Daily Simple SOFR.
Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by the Parent Borrower or any of its Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness permitted to be issued or incurred under Section 10.1 other than Replacement Term Loans, it being understood that the issuance or incurrence of Replacement Term Loans shall constitute a Debt Incurrence Prepayment Event solely with respect to the Class of Term Loans intended to be replaced thereby).
Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, examinership or similar debtor relief laws of the U.S., Canada or other applicable jurisdictions (domestic or foreign) from time to time in effect and affecting the rights of creditors generally and including (without limitation) the arrangement provisions of any corporate statute governing any corporation formed under the laws of Canada or any province or territory thereof.
Declined Proceeds shall have the meaning provided in Section 5.2(f).
Default” shall mean any event, act, or condition that with notice or lapse of time, or both, would constitute an Event of Default.
Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
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Defaulting Lender” shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of Lender Default.
Designated Gross Amount” shall have the meaning provided in Section 2.16(b)(ii)(A).
Designated Jurisdiction” shall mean any country or territory to the extent that such country or territory is the target of any Sanctions Laws (as of the date of this Agreement, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria).
Designated Net Amount” shall have the meaning provided in Section 2.16(b)(ii)(A).
Designated Non-Cash Consideration shall mean the Fair Market Value of non-cash consideration received by the Parent Borrower or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Parent Borrower, setting forth the basis of such valuation, executed by either a senior vice president or the principal financial officer or other Authorized Officer of the Parent Borrower, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 10.4.
Disposed EBITDA shall mean, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary, determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as the case may be.
disposition” shall have the meaning assigned such term in clause (i) of the definition of Asset Sale.
Disqualified Institutions” shall mean such Persons (i) that have been specified in writing to the Administrative Agent or the Joint Lead Arrangers on or prior to June 11, 2021 as being Disqualified Institutions, (ii) who are competitors of the Company and its Subsidiaries that are separately identified in writing by the Parent Borrower to the Administrative Agent from time to time, and (iii) in the case of each of clauses (i) and (ii), any of their Affiliates (other than any such Affiliate that is affiliated with a financial investor in such Person and that is not itself an operating company or otherwise an Affiliate of an operating company so long as such Affiliate is a bona fide debt Fund) that are either (a) in the case of clause (ii) only, identified in writing by the Parent Borrower to the Administrative Agent from time to time or (b) clearly identifiable on the basis of such Affiliate’s name; provided that bona fide debt Funds primarily engaged in investing in loans and debt securities shall not be identified as competitors or Affiliates of a competitor; provided, further, that, for the avoidance of doubt, any such designation of a Disqualified Institution hereunder shall not apply retroactively to any prior assignment to any Lender permitted hereunder at the time of such assignment. Notwithstanding the foregoing, each Credit Party and the Lenders acknowledge and agree that the Administrative Agent shall not have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Institution and the Administrative Agent shall have no liability with respect to any assignment made to a Disqualified Institution.
Disqualified Stock” shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Qualified Stock), other than as a result of a change
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of control, asset sale, or similar event, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely for Qualified Stock), other than as a result of a change of control, asset sale, or similar event, in whole or in part, in each case, prior to the date that is 91 days after the Latest Term Loan Maturity Date hereunder (as in effect at the time of such issuance) (it being understood that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following such Latest Term Loan Maturity Date at the time such Capital Stock is issued shall constitute Disqualified Stock); provided that (i) if such Capital Stock is issued to any plan for the benefit of employees of Holdings, the Parent Borrower or their Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by Holdings, the Parent Borrower or their Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death, or disability and (ii) no Subordinated Shareholder Debt shall constitute Disqualified Stock.
Distressed Person” shall have the meaning provided in the definition of “Lender-Related Distress Event”.
Dollar Equivalent” shall mean, at any time, (i) with respect to any amount denominated in Dollars, such amount, and (ii) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars, as determined by the Administrative Agent on the basis of the Spot Rate (determined on the most recent date of determination) for the purchase of Dollars with such currency.
Dollars and “$” shall mean dollars in lawful currency of the United States.
EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Effective Yield” shall mean, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation with the Parent Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins, (b) interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed four-year average life to maturity or lesser remaining average life to maturity), but excluding (i) any advisory, arrangement, commitment, consent, structuring, success, underwriting, ticking, unused line fees, amendment fees and/or any similar fees payable in connection therewith (regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (ii) any other fee that is not paid directly by the Parent generally to all relevant lenders ratably (or, if only one lender (or affiliated group of lenders) is providing such Indebtedness, are fees of the type not customarily shared with lenders generally); provided that with respect to any Indebtedness that includes a “EurocurrencyTerm SOFR floor” or “ABR floor,” (a) to the extent that the Eurocurrency RateAdjusted Term SOFR (with an Interest Period of three months) or ABR
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(without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (b) to the extent that the Eurocurrency RateAdjusted Term SOFR (with an Interest Period of three months) or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.
Eligible Assignee” shall mean any Person that may be an assignee of a Revolving Credit Commitment under Section 13.6(b) (subject to receipt of such consents, if any, as may be required for the assignment of the applicable Loan and/or Commitments to such Person under Section 13.6(b)).
Environmental Claims” shall mean any and all actions, suits, orders, decrees, demand letters, claims, notices of noncompliance or potential responsibility or violation, or proceedings pursuant to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial, or other actions or damages pursuant to any Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation, or injunctive relief relating to the presence, Release or threatened Release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials), or the environment including, without limitation, ambient air, indoor air, surface water, groundwater, soil, land surface and subsurface strata, and natural resources such as wetlands.
Environmental Law” shall mean any applicable federal, state, foreign, or local statute, law, rule, regulation, ordinance, code, and rule of common law and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree, or judgment, relating to pollution or protection of the environment, including, without limitation, ambient air, indoor air, surface water, groundwater, soil, land surface and subsurface strata and natural resources such as flora, fauna, or wetlands, or protection of human health or safety (to the extent relating to human exposure to Hazardous Materials) and including those relating to the generation, storage, treatment, transport, Release, or threat of Release of Hazardous Materials.
Equity Financing” shall mean (w) the net proceeds of the PIPE Financing, (x) the aggregate amount of cash released to the Parent from the Parent’s trust account (for the avoidance of doubt, not including the aggregate amount of cash on deposit in the Parent’s trust account that is required to be used to redeem the common stock of the Parent) used in connection with the Transactions, (y) the Backstop Amount (as defined in the Transaction Agreement) (to the extent actually funded) and/or (z) any other cash Permitted Equity of the Parent obtained in connection with the Transactions.
Equity Interest” shall mean Capital Stock and all warrants, options, or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, including all regulations issued thereunder.
ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with any Credit Party, is treated as a single employer under Section 414 (b) or (c) of the
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Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event” shall mean (a) a “reportable event” within the meaning of Section 4043(b) of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the 30-day notice period has been waived); (b) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan, or the filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code with respect to any Pension Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the incurrence of material liability with respect to the withdrawal by the Parent Borrower, any of its 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 material liability to the Parent Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan; (f) the imposition of liability on the Parent Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) of the Parent Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Parent Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (i) the incurrence of liability or the imposition of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
Erroneous Payment” shall have the meaning provided in Section 12.16(a).
Erroneous Payment Deficiency Assignment” shall have the meaning provided in Section 12.16(c)(i).
Erroneous Payment Impacted Class” shall have the meaning provided in Section 12.16(c)(i).
Erroneous Payment Return Deficiency” shall have the meaning provided in Section 12.16(c)(i).
Erroneous Payment Subrogation Rights” shall have the meaning provided in Section 12.16(d).
EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Euro” shall mean the single currency unit of the Participating Member States.
Eurocurrency Loan shall mean any Loan bearing interest at a rate determined by reference to the Eurocurrency Rate.
Eurocurrency Rate” shall mean, for any Interest Period:
(a) in the case of any Eurocurrency Loan denominated in Dollars: [reserved];
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(i) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the Reuters Page LIBOR01 (or any successor thereto that displays an offered rate administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of that rate)) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the London interbank market for deposits of amounts in Dollars for delivery on the first day of such Interest Period;
(ii) if the rates referenced in the preceding clause (a)(i) are not available, the related Interpolated Rate;
(b) in the case of any Eurocurrency Loan denominated in Euros:
(i) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on Reuters Page EURIBOR01 (or any successor thereto that displays an offered rate administered by the Banking Federation of the European Union (or any other Person that takes over the administration of that rate)) for deposits in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (Brussels time) two TARGET Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the European interbank market for deposits of amounts in Euros for delivery on the first day of such Interest Period;
(ii) if the rates referenced in the preceding clause (b)(i) are not available, the related Interpolated Rate; and
(c) in the case of any Eurocurrency Loan denominated in a currency other than Dollars and Euros, the rate established pursuant to any amendment entered into pursuant to Section 13.1(c)(iii) hereof;
provided that in no event shall the Eurocurrency Rate for any currency be less than the Floor (if any) applicable to such currency.
Event of Default shall have the meaning provided in Section 11.
Excess Cash Flow shall mean, for any period, an amount equal to the excess of:
(i)    the sum, without duplication, of:
(a)    Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for such period,
(b)    an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income (but excluding any such non-cash charge representing an accrual or reserve for potential cash items in any future period and excluding amortization of a prepaid cash item that was paid in a prior period) and cash receipts to the extent excluded in arriving at such Consolidated Net Income,
(c)    decreases in Consolidated Working Capital for such period (other than (1) reclassification of items from short-term to long-term or vice versa and (2) any such decreases arising from acquisitions or Asset Sales by the Parent Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting),
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(d)    an amount equal to the aggregate net non-cash loss on Asset Sales by the Parent Borrower and the Restricted Subsidiaries during such period (other than Asset Sales in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income, and
(e)    cash receipts in respect of Hedge Agreements during such period to the extent not otherwise included in Consolidated Net Income,
over (ii) the sum, without duplication, of:
(a)    an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income, cash charges to the extent excluded (or otherwise not included) in arriving at such Consolidated Net Income, and Transaction Expenses to the extent not deducted in arriving at such Consolidated Net Income and paid in cash during such period,
(b)    the aggregate amount of all principal payments of Indebtedness of the Parent Borrower and the Restricted Subsidiaries (including (1) the principal component of payments in respect of Finance Lease Obligations, (2) the amount of any scheduled repayment of Term Loans pursuant to Section 2.5, and (3) the amount of a mandatory prepayment of Term Loans pursuant to Section 5.2(a) to the extent required due to an Asset Sale or casualty event that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (A) all other prepayments of Term Loans and (B) all prepayments of Revolving Loans (and any other revolving loans (unless there is an equivalent permanent reduction in commitments thereunder)) made during such period, except to the extent financed with the proceeds of other long-term Indebtedness of the Parent Borrower or the Restricted Subsidiaries),
(c)    an amount equal to the aggregate net non-cash gain on Asset Sales by the Parent Borrower and the Restricted Subsidiaries during such period (other than Asset Sales in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income,
(d)    increases in Consolidated Working Capital for such period (other than (1) reclassification of items from short-term to long-term or vice versa and (2) any such increases arising from acquisitions or Asset Sales by the Parent Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting),
(e)    payments in cash by the Parent Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Parent Borrower and the Restricted Subsidiaries other than Indebtedness, to the extent not already deducted from Consolidated Net Income,
(f)    the aggregate amount of any premium, make-whole, or penalty payments actually paid in cash by the Parent Borrower and the Restricted Subsidiaries during such period that are made in connection with any prepayment of Indebtedness to the extent that such payments are not deducted in calculating Consolidated Net Income,
(g)    the amount of taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period,
(h)    cash expenditures in respect of Hedge Agreements during such period to the extent not deducted in arriving at such Consolidated Net Income, and
(i)    to the extent not expensed (or exceeding the amount expensed) during any period or not deducted (or exceeding the amount deducted) in arriving at such Consolidated Net Income, the aggregate amount of losses, expenses or other charges paid or payable in cash by the Parent Borrower and its Restricted Subsidiaries during such period (whether or not incurred during such period), other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness).
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Notwithstanding anything to the contrary in this Agreement, in no event shall Excess Cash Flow be calculated on a Pro Forma Basis.
Excess Cash Flow Period” shall mean each fiscal year of the Parent Borrower ending after the Closing Date, commencing with the first full fiscal year of the Parent Borrower that begins after the Closing Date, which fiscal year is the fiscal year ending December 31, 2022.
Excluded Contribution” shall mean the aggregate amount of net cash proceeds, and the Fair Market Value of marketable securities or other assets or property, received by the Parent Borrower from (i) contributions to its Permitted Equity, or (ii) the sale (other than to a Subsidiary of the Parent Borrower, or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of Holdings or the Parent Borrower) of Capital Stock (other than Disqualified Stock) of the Parent Borrower, as the case may be, which are excluded from the calculation set forth in clauses (c), (d) and (i) of the definition of Available Amount; provided that no Cure Amount shall constitute an Excluded Contribution.
Excluded Lender” shall have the meaning provided in Section 13.1(k)(ii).
Excluded Property” shall mean (a) any motor vehicles and other assets subject to certificates of title if a security interest therein cannot be perfected by the filing of a UCC-1 financing statement or without requiring any perfection action, (b) all commercial tort claims (excluding the proceeds therefrom) estimated by the Parent Borrower in good faith not to exceed $10,000,000, (c) any governmental licenses or state or local franchises, charters and authorizations to the extent security interest is prohibited or restricted thereby (excluding the proceeds therefrom), (d) pledges and security interests prohibited or restricted by any applicable law, rule, regulation or governmental or court order (including any requirement to obtain the consent of any governmental or third party authority unless such consent is obtained (it being understood that there is (and shall be) no obligation to pursue or obtain such consent)), (e) any asset (including any general intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any property or other right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement or, in the case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the Credit Party of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction in favor of a third party (other than a Credit Party) or result in the abandonment, invalidation or unenforceability of any right or assets of the relevant Credit Party, (ii) result in a breach, termination (or a right of termination) or default under any such contract, instrument, lease, license, permit, agreement or other document (including pursuant to any “change of control” or similar provision) (there being no requirement pursuant to any Credit Document to obtain any consent in respect thereof from any Person that is not also a Credit Party) or (iii) permit any Person (other than any Credit Party) to amend any rights, benefits and/or obligations of the relevant Credit Party or Restricted Subsidiary in respect of such relevant asset or permit such Person to require any Credit Party or any subsidiary of the Parent Borrower to take any action materially adverse to the interests of such subsidiary or Credit Party; provided, however, that any such asset will only constitute Excluded Property under clause (i), clause (ii) or clause (iii) above to the extent such violation or breach, termination (or right of termination), default or right to amend would not be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable Requirement of Law; provided, further, that any such asset shall cease to constitute Excluded Property at such time as the condition causing such violation, breach, termination (or right of termination) or default or right to amend or require other actions no longer exists and to the extent severable, the security interest granted under the applicable Security Document shall attach immediately to any portion of such general intangible or other right that does not result in any of the consequences specified in clauses (i) through (iii) above, (f) any assets or property (other than Capital Stock or Stock Equivalents of a Subsidiary)
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to the extent a security interest in such assets would reasonably be expected to result in non-de minimis adverse tax consequences to Holdings, the Parent Borrower or any of its Subsidiaries or parent companies as determined by the Parent Borrower, in good faith, (g) letter of credit rights except to the extent constituting a supporting obligation for other Collateral as to which perfection of the security interest in such other Collateral is accomplished by filing of a financing statement or registration under the Uniform Commercial Code (it being understood that no actions shall be required to perfect a security interest in letter of credit rights, other than filing of a statement or registration under the Uniform Commercial Code), (h) any intent-to-use application 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, (i) any Excluded Stock and Stock Equivalents, (j) assets where the cost of obtaining a security interest therein (including any tax effects relating thereto) exceeds the practical benefit to the Lenders afforded thereby as determined in good faith by the Parent Borrower, (k) any Excluded Real Property, (l) any assets or property of any CFC or CFC Holding Company and (m) any asset of Holdings other than Capital Stock of the Parent Borrower; provided, however, that Excluded Property shall not include any proceeds, substitutions or replacements of any Excluded Property referred to in clauses (a) through (m) (unless such proceeds, substitutions or replacements would constitute Excluded Property referred to in clauses (a) through (m)).
Excluded Real Property” shall mean (a) (i) on the Closing Date, each fee-owned real property with a Fair Market Value (or, if Fair Market Value is not determinable by the Parent Borrower, book value) of $10,000,000 or less per property or (ii) after the Closing Date, each fee-owned real property with a purchase price of $10,000,000 or less per property, (b) any real property that is subject to a Permitted Lien of the type described in clause (ix) of the definition thereof or securing Indebtedness of the type described in Section 10.1(d), (c) any real property with respect to which, in the good faith determination of the Parent Borrower, the cost of providing a Mortgage is excessive in view of the benefits to be obtained by the Lenders, (d) any real property acquired after the Closing Date to the extent providing a mortgage on such real property would (i) reasonably be expected to result in non-de minimis adverse tax consequences as determined in good faith by the Parent Borrower, (ii) be prohibited or limited by any applicable law, rule, regulation, or governmental or court order (including any requirement to obtain the consent of any governmental or third party authority unless such consent is obtained (it being understood that there is (and shall be) no obligation to pursue or obtain such consent)), or (iii) violate a contractual obligation to the owners of such real property (other than any such owners that are Holdings, the Parent Borrower or their Restricted Subsidiaries) that is binding on or relating to such real property (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable regulation or statute), (e) any Real Estate that a Credit Party has leasehold interest in as tenant or which is not otherwise owned in fee and (f) any real property that is not located in the United States.
Excluded Stock and Stock Equivalents shall mean (i) any Capital Stock or Stock Equivalents with respect to which, in the good faith of the Parent Borrower, the cost or other consequences of pledging such Capital Stock or Stock Equivalents in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) (A) any Voting Stock (or Stock Equivalents of Voting Stock) in excess of 65% of the total combined voting power of all classes of issued and outstanding Voting Stock of any Subsidiary of the Parent Borrower that is (I) a CFC or a CFC Holding Company and (II) not a Subsidiary of a CFC or a CFC Holding Company and (B) any Capital Stock or Stock Equivalents in any Subsidiary of (I) a CFC or (II) a CFC Holding Company, (iii) any Capital Stock or Stock Equivalents to the extent the pledge thereof would violate any applicable law, rule, regulation, or governmental or court order (including any legally effective requirement to obtain the consent of any Governmental Authority unless such consent has been obtained (it
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being understood that there is (and shall be) no obligation to pursue or obtain such consent)), (iv) in the case of (A) any Capital Stock or Stock Equivalents of any Subsidiary to the extent such Capital Stock or Stock Equivalents are subject to a Lien permitted by clause (ix) of the definition of Permitted Lien or (B) any Capital Stock or Stock Equivalents of any Subsidiary that is not wholly-owned by the Parent Borrower and its Subsidiaries at the time such Subsidiary becomes a Subsidiary for so long as it is not wholly-owned, any Capital Stock or Stock Equivalents of each such Subsidiary described in clause (A) or (B) to the extent (I) that a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Requirement (after giving effect to the anti-assignment provisions of the Uniform Commercial Code or other applicable law and other than proceeds thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or restriction), (II) any Contractual Requirement prohibits such a pledge without the consent of any other party; provided that this clause (II) shall not apply if (x) such other party is a Credit Party or Wholly-Owned Subsidiary or (y) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate Holdings, the Parent Borrower or any Subsidiary to obtain any such consent) (after giving effect to the anti-assignment provisions of the Uniform Commercial Code or other applicable law and other than proceeds thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or restriction) and for so long as such Contractual Requirement or replacement or renewal thereof is in effect, or (III) a pledge thereof to secure the Obligations would give any other party (other than a Credit Party or Wholly-Owned Subsidiary) to any contract, agreement, instrument, or indenture governing such Capital Stock or Stock Equivalents the right to terminate its obligations thereunder (after giving effect to the anti-assignment provisions of the Uniform Commercial Code or other applicable law and other than proceeds thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or restriction), (v) any Capital Stock or Stock Equivalents of any Subsidiary, to the extent that the pledge of such Capital Stock or Stock Equivalents would result in non-de minimis adverse tax consequences to Holdings, the Parent Borrower or any Subsidiary or any parent company as determined by the Parent Borrower in good faith, (vi) any Capital Stock or Stock Equivalents that are margin stock, (vii) any Capital Stock and Stock Equivalents of any Subsidiary that is a captive insurance Subsidiary or an SPV or Receivables Subsidiary and (viii) any Capital Stock or Stock Equivalents of each Subsidiary, in each case, for so long as any such Subsidiary (A) does not (on a consolidated basis with its Restricted Subsidiaries) constitute a Material Subsidiary or (B) is an Unrestricted Subsidiary.
Excluded Subsidiary shall mean (i) each Subsidiary, in each case, for so long as any such Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries) constitute a Material Subsidiary, (ii) each Subsidiary that is not a Wholly-Owned Subsidiary (for so long as such Subsidiary remains a non-Wholly-Owned Restricted Subsidiary), (iii) (A) any CFC or CFC Holding Company and (B) any Subsidiary of a CFC or a CFC Holding Company, (iv) any Foreign Subsidiary and any U.S. Subsidiary of a Foreign Subsidiary, (v) each Subsidiary that is prohibited by any applicable Contractual Requirement or any applicable law, rule or regulation (including any requirement to obtain the consent of any governmental or third party authority unless such consent is obtained (it being understood that there is (and shall be) no obligation to pursue or obtain such consent)) from guaranteeing or granting Liens to secure the Obligations at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), (vi) (a) any other Subsidiary with respect to which, in the good faith judgment of the Parent Borrower, the cost or other consequences of providing a Guarantee of the Obligations (including any tax effects relating thereto) shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (b) any Subsidiary with respect to which providing such a Guarantee would result in non-de minimis adverse tax consequences to Holdings, the Parent Borrower or any of its Subsidiaries or parent companies as determined by the Parent Borrower in good faith, (vii) each Unrestricted Subsidiary, (viii) any
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Receivables Subsidiary, (ix) each other Subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted hereunder and financed with assumed Indebtedness permitted hereunder, and each Restricted Subsidiary acquired in such Permitted Acquisition or other Investment permitted hereunder that guarantees such Indebtedness, in each case to the extent that, and for so long as, the documentation relating to such Indebtedness to which such Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations and such prohibition was not created in contemplation of such Permitted Acquisition or other Investment permitted hereunder, (x) each SPV or not-for-profit Subsidiary and (xi) any Subsidiary for which the providing of a guarantee would reasonably be expected to result in any violation or breach of, or conflict with, fiduciary duties of such Subsidiary’s officers, directors or managers (as determined by the Parent Borrower in good faith).
Notwithstanding the foregoing, the Parent Borrower may elect in writing that any Restricted Subsidiary (including any Restricted Subsidiary organized in a jurisdiction outside of the United States) that would otherwise constitute an Excluded Subsidiary shall become a Guarantor hereunder until such time as the Parent Borrower may specify in writing (each, a “Specified Foreign Guarantor”). In the event that such Restricted Subsidiary is organized in a jurisdiction outside of the United States, the Parent Borrower and the Collateral Agent shall cooperate to establish customary security arrangements with respect to such Restricted Subsidiary, which shall be based upon such “agreed security principles” as are customary for similar transactions governed by New York law.
Excluded Swap Obligation” shall mean, with respect to any Guarantor, 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 or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) or any other applicable law by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
Excluded Taxes” shall mean, with respect to any Agent, any Lender, any Letter of Credit Issuer or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, (i) Taxes imposed on or measured by its net income (however denominated), franchise (and similar) Taxes (imposed in lieu of net income Taxes) or branch profits Taxes (in each case, however denominated, and including (for the avoidance of doubt) any backup withholding in respect thereof under Section 3406 of the Code), in each case by a jurisdiction (including any political subdivision thereof) as a result of such recipient being organized (or incorporated) in, having its principal office in, or in the case of any Lender, having its applicable lending office in, such jurisdiction, or as a result of any other present or former connection with such jurisdiction (other than any such connection arising from this Agreement or any other Credit Documents or any transactions contemplated thereunder), (ii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of a Lender pursuant to laws in force at the time such Lender acquires an interest in (or becomes a party to) any Credit Document (or designates a new lending office), other than in the case of a Lender that is an assignee pursuant to a request by the Parent Borrower under Section 13.7 (or that designates a new lending office pursuant to a request by the Parent Borrower), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from the applicable Credit Parties with respect to such withholding Tax
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pursuant to Section 5.4, (iii) any Taxes attributable to a recipient’s failure to comply with Section 5.4(e) or (iv) any withholding Tax imposed under FATCA.
Existing Class” shall mean any Existing Term Loan Class and any Existing Revolving Credit Class.
Existing Debt Facility” shall mean that certain Credit Agreement, dated as of March 8, 2019, by an among Mirion Technologies, Inc., as US Borrower (as defined therein), Mirion Technologies (Luxembourg) S.A R.L, as Lux Borrower (as defined therein), the lending institutions party thereto as lenders and Morgan Stanley Senior Funding, Inc., as administrative agent and collateral agent (as amended by that certain Joinder Agreement and Amendment No. 1 dated as of July 8, 2019, that certain Joinder Agreement and Amendment No. 2, dated as of December 16, 2019, and that certain Joinder Agreement and Amendment No. 3, dated as of December 18, 2020, and is otherwise amended, amended and restated, modified or supplemented).
Existing Revolving Credit Class” shall have the meaning provided in Section 2.14(g)(ii).
Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(g)(ii).
Existing Revolving Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
Existing Term Loan Class” shall have the meaning provided in Section 2.14(g)(i).
Expected Cost Savings” shall have the meaning provided in the definition of the term Consolidated EBITDA.
Extended Repayment Date” shall have the meaning provided in Section 2.5(c).
Extended Revolving Credit Commitments” shall have the meaning provided in Section 2.14(g)(ii).
Extended Revolving Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
Extended Revolving Loan Maturity Date” shall mean the date on which any tranche of Extended Revolving Credit Loans matures.
Extended Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
Extended Term Loans” shall have the meaning provided in Section 2.14(g)(i).
Extending Lender” shall have the meaning provided in Section 2.14(g)(iii).
Extension Amendment” shall have the meaning provided in Section 2.14(g)(iv).
Extension Date” shall have the meaning provided in Section 2.14(g)(v).
Extension Election” shall have the meaning provided in Section 2.14(g)(iii).
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Extension Request” shall mean a Term Loan Extension Request.
Extension Series” shall mean all Extended Term Loans and Extended Revolving Credit Commitments that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series) and that provide for the same interest margins, extension fees, and amortization schedule.
Fair Market Value” shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by the Parent Borrower.
FATCA” shall mean (i) 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), (ii) any regulations promulgated thereunder or official interpretations thereof, (iii) any agreements entered into pursuant to Section 1471(b)(1) 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), and (iv) any intergovernmental agreements (or related legislation or official administrative rules or practices) implementing the foregoing.
FCA” shall have the meaning provided in Section 1.16(a).
Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum rates on overnight federal funds transactions with members of the Federal Reserve System as published on the next succeeding Business Day by the Federal Reserve Bank of New York; provided that (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.
Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.
Finance Lease” shall mean, 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 financing or capital lease on the balance sheet of that Person. Notwithstanding anything to the contrary in the definition of “Finance Lease” or “Finance Lease Obligation” or in this Agreement, unless the Parent Borrower elects otherwise, all obligations of any Person that are or would have (regardless of when such obligations were created) been treated as operating leases for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as leases that do not constitute finance or capital lease obligations or Indebtedness) for purposes of all financial definitions, calculations and deliverables under this Agreement or any other Credit Document (including the calculation of Consolidated Net Income and Consolidated EBITDA) notwithstanding the fact that such obligations are required in accordance with the ASU or any other change in accounting treatment or otherwise (on a prospective or retroactive basis or otherwise) to be treated as or to be recharacterized as financing or capital lease obligations or otherwise accounted for as liabilities in financial statements.
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Finance Lease Obligation” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a Finance Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.
First Lien Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated First Lien Secured Debt as of such date of determination, minus the Unrestricted Cash Amount to (ii) Consolidated EBITDA of the Parent Borrower and the Restricted Subsidiaries for the Test Period then last ended, in each case with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in Section 1.12.
First Lien Obligations” shall mean (i) the Obligations and (ii) any Other First Lien Obligations.
Fixed Amounts” shall have the meaning provided in Section 1.11(b).
Fixed Charges” shall mean, with respect to any Person for any period, the sum of:
(i)    Consolidated Interest Expense of such Person for such period,
(ii)    all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock or any Refunding Capital Stock of such Person made during such period, and
(iii)    all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Stock made during such period.
Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of 1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) Biggert-Waters Flood Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or modified from time to time.
    “Floor” shall mean, (i) with respect to the Initial Term Loans, 0.50% per annum and (ii) with respect to Loans and Letters of Credit denominated in Dollars, Euros or Pounds Sterling, in each case pursuant to the Initial Revolving Credit Commitments, 0.00% per annum.

Foreign Currency Benchmark Discontinuance Event” shall mean any of the following with respect to any benchmark interest rate for the determination of a rate of interest with respect to Loans denominated in a currency other than Dollars (as of the date of this Agreement, Euros and Pounds Sterling):
(a)    a benchmark interest rate (as of the date of this agreement, the Eurocurrency Rate for Euro and Daily Simple RFR for Pounds Sterling) is not ascertainable pursuant to the provisions of this Agreement and the inability to ascertain such rate is unlikely to be temporary;
(b)    the regulatory supervisor for the administrator of such benchmark interest rate, the central bank for the applicable currency, an insolvency official with jurisdiction over the administrator for such benchmark interest rate, a resolution authority with jurisdiction over the administrator for such benchmark rate of interest or a court or an entity with similar insolvency or resolution authority over the administrator for such benchmark rate of interest, has made a public statement, or published information, stating that the administrator of such benchmark rate
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of interest has ceased or will cease to provide such benchmark rate of interest permanently or indefinitely on a specific date, provided that, at that time, there is no successor administrator that will continue to provide such benchmark rate of interest; or
(c)    the administrator of such benchmark rate of interest or a Governmental Authority having jurisdiction over the Administrative Agent or the administrator of such benchmark rate of interest has made a public statement identifying a specific date after which such benchmark rate of interest shall no longer be made available, or used for determining the interest rate of loans; provided that, at that time, there is no successor administrator that will continue to provide such benchmark rate of interest.
Foreign Currency Benchmark Discontinuance Time” shall mean, with respect to any Foreign Currency Benchmark Discontinuance Event, (i) in the case of an event under clause (a) of such definition, the Business Day immediately following the date of determination that such interest rate is not ascertainable and such result is unlikely to be temporary and (ii) in the case of an event under clause (b) or (c) of such definition, the date on which the applicable benchmark rate of interest ceases to be provided by the administrator thereof or is not permitted to be used.
Foreign Prepayment Event” shall have the meaning provided in Section 5.2(a)(iv).
Foreign Subsidiary” shall mean each Subsidiary of the Parent Borrower that is not a U.S. Subsidiary.
Fronting Exposure” shall mean, at any time there is a Defaulting Lender, with respect to the Letter of Credit Issuer, such Defaulting Lender’s Revolving Credit Commitment Percentage of the outstanding L/C Obligations other than L/C 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.
Fronting Fee” shall have the meaning provided in Section 4.1(d).
Fund” shall mean any Person (other than a natural Person) that is engaged or advises funds or other investment vehicles that are engaged in making, purchasing, holding, or investing in commercial loans and similar extensions of credit in the ordinary course.
Funded Debt” shall mean all Indebtedness of the Parent Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of the Parent Borrower or any Restricted Subsidiary, to a date more than one year from the date of its creation or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date (including all amounts of such Funded Debt required to be paid or prepaid within one year from the date of its creation), and, in the case of the Credit Parties, Indebtedness in respect of the Loans.
GAAP” shall mean generally accepted accounting principles in the United States, as in effect from time to time; provided, however, that if the Parent Borrower notifies the Administrative Agent that the Parent Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof (including, but not limited to, the impact of Accounting Standards Update 2016-12, Revenue from Contracts with Customers (Topic 606) or similar revenue recognition policies or any change in the methodology of calculating reserves for returns, rebates and other chargebacks) or any election by the Parent Borrower to apply IFRS (as described below) on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the
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basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Furthermore, at any time after the Closing Date, the Parent Borrower may elect to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP and GAAP concepts shall thereafter be construed to refer to IFRS and corresponding IFRS concepts (except as otherwise provided in this Agreement); provided any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Parent Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Parent Borrower shall give written notice of any such election made in accordance with this definition to the Administrative Agent. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness. Notwithstanding any other provision contained herein, the amount of any Indebtedness under GAAP with respect to Finance Lease Obligations shall be determined in accordance with the definition of Finance Lease Obligations.
Goldman Sachs” shall mean GS and its Affiliates that invest in loans or other extensions of credit in the ordinary course of their business. For the avoidance of doubt, the term “Goldman Sachs” shall exclude the GS Sponsor.
Governmental Authority shall mean any nation, sovereign, or government, any state, province, territory, or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, taxing, regulatory, or administrative functions of or pertaining to government, including a central bank or stock exchange.
Granting Lender” shall have the meaning provided in Section 13.6(g).
Gross Outstandings” shall mean, with respect to an overdraft facility comprising more than one account, the Ancillary Outstandings of such overdraft facility but calculated on the basis that the text “(net of any Available Credit Balance)” in paragraph (x) of the definition of “Ancillary Outstandings” was deleted.
GS” shall mean Goldman Sachs Lending Partners LLC.
GS & Co.” shall have the meaning provided in the recitals to this Agreement.
GS Sponsor” shall mean GS Sponsor II LLC, a Delaware limited liability company.
Guarantee” shall mean (i) the Guarantee made by Holdings and each other Guarantor in favor of the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B, and (ii) any other guarantee of the Obligations made by a Restricted Subsidiary in form and substance reasonably acceptable to the Administrative Agent.
guarantee obligations shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any primary obligor in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (i) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (a) for the purchase or payment of any such Indebtedness or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities, or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness, or (iv) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided,
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however, that the term guarantee obligations shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations or product warranties in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any guarantee obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such guarantee obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
Guarantors” shall mean (i) each Subsidiary of the Parent Borrower that is party to the Guarantee on the Closing Date, (ii) each Subsidiary of the Parent Borrower that becomes a party to a Guarantee after the Closing Date pursuant to Section 9.11 or otherwise and (iii) Holdings; provided that (i) in no event shall any Excluded Subsidiary be required to be a Guarantor (unless such Subsidiary is no longer an Excluded Subsidiary) and (ii) in no event shall any Subsidiary that is described in clause (iii) of the definition of “Excluded Subsidiary” be a Guarantor; provided, further, that notwithstanding anything to the contrary in this Agreement, no Borrower shall constitute an Excluded Subsidiary and no Subsidiary that becomes a Guarantor at the election of the Parent Borrower pursuant to Section 9.11 shall thereafter constitute an “Excluded Subsidiary” pursuant to clause (iii) and/or (iv) of the definition thereof.
Hazardous Materials shall mean (i) any petroleum or petroleum products, radioactive materials, friable asbestos, polychlorinated biphenyls, and radon gas; (ii) any chemicals, materials, or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any Environmental Law; and (iii) any other chemical, material, or substance, which is prohibited, limited, or regulated due to its dangerous or deleterious properties or characteristics by, any Environmental Law.
Hedge Agreements shall mean (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.
Hedge Bank” shall mean (i) (a) at the Parent Borrower’s election from time to time by written notice to the Administrative Agent substantially in the form of Exhibit M-1 or such other form reasonably acceptable to the Administrative Agent, each Revolving Credit Lender as of the Closing Date and each of JPMorgan Chase Bank, N.A., Bank of America, N.A., Royal Bank of Canada, Morgan Stanley Bank, N.A., HSBC Bank, N.A. and Deutsche Bank AG or any Affiliate of any such Person, (b) any Person that, at the time it enters into a Hedge Agreement, is a Lender, an Agent or an Affiliate of a Lender or an Agent and (c) with respect to any Hedge Agreement entered into prior to the Closing Date, any Person that is a Lender or an Agent or an
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Affiliate of a Lender or an Agent on the Closing Date and (ii) any other Person reasonably acceptable to the Administrative Agent that is designated by the Parent Borrower as a “Hedge Bank” by written notice to the Administrative Agent substantially in the form of Exhibit M-1 or such other form reasonably acceptable to the Administrative Agent.
Hedging Obligations” shall mean, with respect to any Person, the obligations of such Person under any Hedge Agreements.
Historical Financial Statements shall mean (a) audited consolidated balance sheets of Mirion Technologies (HoldingRep), Ltd. and its consolidated Subsidiaries, and related consolidated statements of operations, stockholders’ equity and cash flows of Mirion Technologies (HoldingRep), Ltd. and its consolidated subsidiaries for June 30, 2020, June 30, 2019 and June 30, 2018 and (b) the unaudited consolidated balance sheet of Mirion Technologies (HoldingRep), Ltd. and its consolidated Subsidiaries as at the end of March 31, 2021, December 31, 2020 and September 30, 2020.
Holdings shall mean (i) Holdings (as defined in the preamble to this Agreement) or (ii) after the Closing Date, at the written election of the Parent Borrower, any other Person or Persons organized under the laws of the United States, any State of the United States, the District of Columbia, Canada, any province or territory of Canada, Germany or England and Wales (“New Holdings”) that is a Subsidiary of (or are Subsidiaries of) Holdings or of any Parent Entity of Holdings but not the Parent Borrower (the Person that is Holdings immediately prior to any such written election by the Parent Borrower, “Previous Holdings”); provided that (a) such New Holdings directly owns 100% of the Equity Interests of the Parent Borrower, (b) New Holdings shall expressly assume all the obligations of Previous Holdings under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (c) if reasonably requested by the Administrative Agent, an opinion of counsel shall be delivered by the Parent Borrower to the Administrative Agent to the effect that, without limitation, such substitution does not violate this Agreement or any other Credit Document, (d) (i) no Event of Default has occurred and is continuing at the time of such substitution and such substitution does not result in any Event of Default and (ii) such substitution does not result in any adverse tax consequences to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder) and (e) no Change of Control shall occur; provided, further, that if each of the foregoing is satisfied, Previous Holdings shall be automatically released of all its obligations under the Credit Documents and any reference to Holdings in the Credit Documents shall be meant to refer to New Holdings.
IBA” shall have the meaning provided in Section 1.16(a).
IFRS” shall have the meaning given such term in the definition of GAAP.
Impacted Loans” shall have the meaning provided in Section 2.10(a).
Increased Amount Date shall have the meaning provided in Section 2.14(a).
Incremental Loans” shall have the meaning provided in Section 2.14(c).
Incremental Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
Incremental Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
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Incremental Revolving Loan Lenders” shall have the meaning provided in Section 2.14(b).
incur” shall have the meaning provided in Section 10.1.
incurrence” shall have the meaning provided in Section 10.1.
Incurrence-Based Provision” shall have the meaning provided in Section 1.11(b).
Indebtedness” shall mean, with respect to any Person, (i) any indebtedness (including principal and premium) of such Person, whether or not contingent (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures, or similar instruments or letters of credit or bankers’ acceptances (or, without double counting, reimbursement agreements in respect thereof), (c) representing the balance deferred and unpaid of the purchase price of any property (including Finance Lease Obligations), or (d) representing any Hedging Obligations, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a net liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided that Indebtedness of any direct or indirect parent entity appearing upon the balance sheet of the Parent Borrower solely by reason of push down accounting under GAAP shall be excluded, (ii) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (i) of another Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business, and (iii) to the extent not otherwise included, the obligations of the type referred to in clause (i) of another Person secured by a Lien on any asset owned by such Person, whether or not such Indebtedness is assumed by such Person; provided that notwithstanding the foregoing, Indebtedness shall be deemed not to include (1) Contingent Obligations incurred in the ordinary course of business, (2) obligations under or in respect of Receivables Facilities, (3) prepaid or deferred revenue arising in the ordinary course of business, (4) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset, (5) any balance that constitutes a trade payable or similar obligation to a trade creditor, accrued in the ordinary course of business, (6) any earn-out obligation or purchase price adjustment (or similar obligation) until such obligation (A) becomes a liability on the balance sheet of such Person in accordance with GAAP (excluding the footnotes thereto) and (B) has not been paid more than 60 days after becoming due and payable following the expiration of dispute mechanics set forth in the agreement governing the applicable transaction, (7) any Subordinated Shareholder Debt or (8) Non-Finance Lease Obligations. The amount of Indebtedness of any Person for purposes of clause (iii) above shall (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the applicable documentation) and (y) the Fair Market Value of the property encumbered thereby as determined by such Person in good faith.
For all purposes hereof, Indebtedness shall exclude all intercompany Indebtedness owed by a Credit Party to another Credit Party having a term not exceeding 365 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business consistent with past practice.
Indemnified Liabilities” shall have the meaning provided in Section 13.5(a).
Indemnified Persons” shall have the meaning provided in Section 13.5(a).
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Indemnified Taxes” shall mean all Taxes imposed on or with respect to any payment by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, other than Excluded Taxes or Other Taxes.
Initial Investors” shall mean (i) Charterhouse Capital Partners IX LP No. 1, Charterhouse Capital Partners IX LP No. 2, Charterhouse Capital Partners IX Co-Investment LP, Charterhouse Capital Partners IX Co-Investment LP No. 2, FACS Investments Holdings I S.à r.l., Cavenham Alternative Investments, ADRIAN Atomic S.C.S., BNP Paribas SA, ETI 2020 FCPI, Five Arrows MirCan Invest and Purple Development, (ii) GS Sponsor and (iii) GSAM Holdings LLC and any fund, Investment, Person, vehicle or account that is a syndicatee thereof on or prior to the Closing Date and, in each case, each such Person’s Affiliates and any fund, investment, Person, vehicle or account that is managed, sponsored or advised by it or its Affiliates, but excluding any operating portfolio companies of the foregoing.
Initial Term Loan Commitment” shall mean, in the case of each Lender that is a Lender on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(b) under the caption “Initial Term Loan Commitment” as such Lender’s Initial Term Loan Commitment. The aggregate amount of the Initial Term Loan Commitments as of the Closing Date is $830,000,000.
Initial Term Loan Lender shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
Initial Term Loan Maturity Date” shall mean October 20, 2028 or, if such date is not a Business Day, the immediately preceding Business Day.
Initial Term Loan Repayment Amount shall have the meaning provided in Section 2.5(b).
Initial Term Loan Repayment Date shall have the meaning provided in Section 2.5(b).
Initial Term Loans” shall have the meaning provided in Section 2.1(a).
Inside Maturity Exceptions” shall mean, with respect to any restrictions as to earliest maturity or weighted average life to maturity, that such restrictions do not apply in the case of (i) (x) bridge loans the terms of which provide for an automatic extension of the maturity date thereof to a date no earlier than the applicable earliest maturity date or (y) bridge loans with a maturity date not longer than one year provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the restrictions that are otherwise applicable with respect to earliest maturity or weighted average life to maturity, (y) Customary Term A Loans and (z) any other Indebtedness (as selected by the Parent Borrower) having an aggregate principal amount outstanding not exceeding the greater of $191,000,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period. For clarity, it is understood and agreed that the Inside Maturity BasketExceptions may be relied upon with respect to restrictions as to both earliest maturity and weighted average life to maturity with respect to any item of Indebtedness without duplication of utilization.
Intellectual Property” shall mean U.S. and foreign intellectual property, including all: (i) (a) patents, inventions, processes, developments, technology, and know-how; (b) copyrights and works of authorship in any media, including graphics, advertising materials, labels, package designs, and photographs; (c) trademarks, service marks, trade names, brand names, corporate names, domain names, logos, trade dress, and other source indicators, and the goodwill of any business symbolized thereby; and (d) trade secrets, confidential, proprietary, or non-public
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information or data; and (ii) all registrations, issuances, applications, renewals, extensions, substitutions, continuations, continuations-in-part, divisions, re-issues, re-examinations, foreign counterparts, or similar legal protections related to the foregoing.
Intercompany Subordination Agreement” shall mean the Intercompany Subordination Agreement, dated as of the date hereof, by and among, Holdings, the Borrowers, the Guarantors and other parties party thereto and the Administrative Agent. For the avoidance of doubt, the Intercompany Subordination Agreement shall be deemed satisfactory subordination for clauses (g) and (h) of Section 10.1.
Intercreditor Agreement Requirement” shall mean, with respect to any secured Indebtedness, that the proper representative for the holders of such Indebtedness shall become party to each applicable Acceptable Intercreditor Agreement.
Interest Coverage Ratio” shall mean, on any date of determination, the ratio of (i) Consolidated EBITDA of the Parent Borrower and the Restricted Subsidiaries to (ii) the Consolidated Interest Expense of the Parent Borrower and the Restricted Subsidiaries, in each case for the Test Period last ended and with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in Section 1.12.
Interest Period shall mean, with respect to any Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.
Interpolated Rate” shall mean, in relation to any Eurocurrency Loan, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable Eurocurrency Rate for the longest period (for which the applicable Eurocurrency Rate is available for the applicable currency) that is shorter than the Interest Period of that Eurocurrency Loan and (b) the applicable Eurocurrency Rate for the shortest period (for which such Eurocurrency Rate is available for the applicable currency) that exceeds the Interest Period of that Eurocurrency Loan, in each case, as of the applicable date for rate determination as set forth in the definition of “Eurocurrency Rate”.
Investment” shall mean, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances, or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel, and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests, or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property; provided that Investments shall not include, intercompany loans, advances, or Indebtedness owed by a Credit Party to another Credit Party having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business.
The amount of any Investment outstanding at any time shall be the original cost of such Investment (in the case of property other than cash or Cash Equivalents, based on the Fair Market Value thereof), reduced by any dividend, distribution, interest payment, return of capital, repayment, or other amount received in respect of such Investment (provided that, with respect to amounts received other than in the form of Cash Equivalents, such amount shall be equal to the Fair Market Value of such consideration).
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Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other nationally recognized statistical rating organization.
Investment Grade Securities” shall mean:
(i)    securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents),
(ii)    debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among Holdings, the Parent Borrower and their Subsidiaries,
(iii)    investments in any fund that invest at least 90% in investments of the type described in clauses (i) and (ii) which fund may also hold immaterial amounts of cash pending investment or distribution, and
(iv)    corresponding instruments in countries other than the United States customarily utilized for high-quality investments.
ISDA CDS Definitions” shall have the meaning provided in Section 13.1(k)(iv).
ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
Issuer Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement, and instrument entered into by the Letter of Credit Issuer and the applicable Borrower (or any other Restricted Subsidiary) or in favor of the Letter of Credit Issuer and relating to such Letter of Credit.
Jefferies” shall mean Jefferies Finance LLC.
Joinder Agreement shall mean an agreement documenting New Loan Commitments in a form reasonably acceptable to the Parent Borrower and the Administrative Agent.
Joint Lead Arrangers” shall mean GS, Citi, Jefferies and JPM (or each of them, as the context may require), in each case, as a “joint lead arranger” and “bookrunner” hereunder.
JPM” shall mean JPMorgan Chase Bank, N.A.
Judgment Currency” shall have the meaning provided in Section 13.19.
Junior Debt” shall mean Subordinated Indebtedness that is required by the terms of the Credit Documents to mature no earlier than the Initial Term Loan Maturity Date.
L/C Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
L/C Facility Maturity Date” shall mean the date that is five Business Days prior to the Revolving Credit Maturity Date; provided that the L/C Facility Maturity Date of any Letter of Credit may be extended beyond such date with the consent of the applicable Letter of Credit Issuer.
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L/C Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unpaid Drawings, including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of any law or rules to which the Letter of Credit is subject, such as Rule 3.14 of the International Standby Practices (ISP98), or the express terms of the Letter of Credit, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Stated Amount of such Letter of Credit.
L/C Participant” shall have the meaning provided in Section 3.3(a).
L/C Participation” shall have the meaning provided in Section 3.3(a).
Latest Term Loan Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Term Loan hereunder at such time, including the latest maturity or expiration date of any New Term Loan or any Extended Term Loan, in each case as extended in accordance with this Agreement from time to time.
LCT Election” shall have the meaning provided in Section 1.11(c).
LCT Test Date” shall have the meaning provided in Section 1.11(c).
Legal Reservations” shall mean (a) the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court and principles of good faith and fair dealing, (b) applicable Debtor Relief Laws, (c) the existence of timing limitations with respect to the bringing of claims under applicable limitation laws and the defenses of acquiescence, set-off or counterclaim and the possibility that an undertaking to assume liability for, or to indemnify a Person against, non-payment of stamp duty may be void, (d) the principle that in certain jurisdictions and under certain circumstances a Lien granted by way of fixed charge may be re-characterized as a floating charge or that security purported to be constituted as an assignment may be re-characterized as a charge, (e) the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty or considered to be interest and thus void, (f) the principle that may prohibit restrictions in relation to a voluntary prepayment of loans bearing floating rates of interest and may restrict charging prepayment fees for a voluntary prepayment of such loans, (g) the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant, (h) the principle that the creation or purported creation of collateral over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which security has purportedly been created, (i) similar principles, rights and defenses under the laws of any relevant jurisdiction and (j) any other matters which are set out as qualifications or reservations as to matters of law of general application in the legal opinions delivered under this Agreement.
Lender” and “Lenders” shall have the meaning provided in the preamble to this Agreement and, as the context requires, includes each Letter of Credit Issuer and each Ancillary Lender.
Lender Default” shall mean (i) the refusal or failure of any Lender to make available its portion of any incurrence of Loans or Reimbursement Obligations, which refusal or failure is not cured within one Business Day after the date of such refusal or failure, unless such Lender notifies the Administrative Agent in writing that such refusal or failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of
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which conditions precedent, together with any applicable default, shall be specifically identified in writing) has not been satisfied, (ii) the failure of any Lender to pay over to the Administrative Agent, any Letter of Credit Issuer or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, (iii) a Lender has notified, in writing, the Parent Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations under this Agreement or has made a public statement to that effect with respect to its funding obligations under this Agreement or a Lender has publicly announced that it does not intend to comply with its funding obligations under other loan agreements, credit agreements or similar facilities generally, (iv) a Lender has failed to confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its funding obligations under this Agreement or (v) a Distressed Person has admitted in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related Distress Event or becomes the subject of a Bail-in Action (or other similar proceeding).
Lender-Related Distress Event” shall mean, with respect to any Lender or any other Person that directly or indirectly controls such Lender (each, a “Distressed Person”), a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver, or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person, or any Person that directly or indirectly controls such Distressed Person or is subject to a forced liquidation or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Lender or any Person that directly or indirectly controls such Lender by a Governmental Authority or an instrumentality thereof.
Letter of Credit” shall mean each letter of credit issued pursuant to Section 3.1(a). Each letter of credit identified on Schedule 1.1(d) shall be deemed to constitute a Letter of Credit issued hereunder for all purposes of the Credit Documents.
Letter of Credit Commitment” shall mean the maximum principal amount of Letters of Credit that may be issued hereunder from time to time, as the same may be increased or reduced from time to time pursuant to Section 3.1. The Letter of Credit Commitment as of the Closing Date is $50,000,000.
Letter of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (i) the Dollar Equivalent of the aggregate principal amount of any Unpaid Drawings in respect of which such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a) at such time and (ii) such Lender’s Revolving Credit Commitment Percentage of the Letters of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a)).
Letter of Credit Fee” shall have the meaning provided in Section 4.1(b).
Letter of Credit Issuer” shall mean (i) Citi, GS, Jefferies and JPM, (ii) any replacement, additional issuer, or successor pursuant to Section 3.6 or (iii) any issuer of a letter of credit listed on Schedule 1.1(d); provided, that no Letter of Credit Issuer shall be required to be the Letter of Credit Issuer for more than the amount set forth, and opposite such Letter of Credit Issuer’s name on Schedule 1.01(b). In the event that there is more than one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires. Jefferies Finance LLC
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will cause Letters of Credit to be issued by unaffiliated financial institutions and such Letters of Credit shall be treated as issued by Jefferies Finance LLC for all purposes under the Loan Documents.
Letter of Credit Request” shall mean a notice executed and delivered by a Borrower pursuant to Section 3.2, and substantially in the form of Exhibit L or another form which is acceptable to the Letter of Credit Issuer in its reasonable discretion.
Letter of Credit Sublimit” shall mean, in the case of each Letter of Credit Issuer that is a Letter of Credit Issuer on the Closing Date, the amount set forth opposite such Letter of Credit Issuer’s name on Schedule 1.1(b) under the caption “Letter of Credit Sublimit” as such Letter of Credit Issuer’s Letter of Credit Sublimit, as the same may be increased or reduced from time to time pursuant to Section 3.1.
Letters of Credit Outstanding” shall mean, at any time the sum of, without duplication, (i) the Dollar Equivalent of the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the Dollar Equivalent of the aggregate principal amount of all Unpaid Drawings.
Level I Status” shall mean, on any date, the circumstance that neither Level II Status nor Level III Status exists.
Level II Status” shall mean, on any date, the circumstance that the First Lien Net Leverage Ratio is less than or equal to 3.85 to 1.00 but greater than 3.35 to 1.00 as of the date of the most recently delivered Section 9.1 Financials.
Level III Status” shall mean, on any date, the circumstance that the First Lien Net Leverage Ratio is less than or equal to 3.35 to 1.00 as of the date of the most recently delivered Section 9.1 Financials.
Lien” shall mean with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest, preference, priority, or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall a Non-Finance Lease Obligation or a license of Intellectual Property be deemed to constitute a Lien.
Limited Condition Transaction” shall mean any transaction by one or more of Holdings, the Parent Borrower and their Restricted Subsidiaries (including any acquisition, Investment, disposition, Restricted Payment or Restricted Debt Payment permitted by this Agreement), in each case the consummation of which is not conditioned on the availability of, or on obtaining, third-party financing.
Limited Conditionality Provision” shall have the meaning provided in Section 6.
Loan” shall mean any Revolving Loan, Term Loan, Extended Term Loan, New Term Loan, or any other loan made by any Lender pursuant to this Agreement.
Market Capitalization” shall mean an amount equal to (a) the total number of issued and outstanding shares of common (or common equivalent) Capital Stock of the Parent Borrower or any Parent Entity of the Parent Borrower on the date of the declaration or making of the relevant Restricted Payment multiplied by (b) the arithmetic mean of the closing prices per share
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of such common (or common equivalent) Capital Stock for the 30 consecutive trading days immediately preceding the date of declaration or making of such Restricted Payment.
Market Intercreditor Agreement” shall mean an intercreditor or subordination agreement or arrangement (which may take the form of a “waterfall” or similar provision) the terms of which are either (a) consistent with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements relating to the distribution of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established in light of the type of Indebtedness subject thereto or (b) in the event a “Market Intercreditor Agreement” has been entered into after the Closing Date meeting the requirement of preceding clause (a), the terms of which are, taken as a whole, not materially less favorable to the Lenders than the terms of such Market Intercreditor Agreement to the extent such agreement governs similar priorities, in each case of clause (a) or (b) as determined by the Parent Borrower in good faith.
Master Agreement” shall have the meaning provided in the definition of the term “Hedge Agreement.”
Material Adverse Effect” shall mean a circumstance or condition affecting the business, assets, operations, properties, or financial condition of the Parent Borrower and its Subsidiaries, taken as a whole, that would, individually or in the aggregate, materially adversely affect (i) the ability of the Parent Borrower and the other Credit Parties, taken as a whole, to perform their payment obligations under this Agreement or any of the other Credit Documents or (ii) the rights and remedies of the Administrative Agent and the Lenders under the Credit Documents.
Material IP” shall mean Intellectual Property (other than customer lists) owned by the Parent Borrower and its Restricted Subsidiaries that is material to the business of the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as determined by the Parent Borrower in good faith.
Material Subsidiary shall mean, at any date of determination, each Restricted Subsidiary (i) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 2.5% of the Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries at such date or (ii) whose revenues during such Test Period were equal to or greater than 2.5% of the consolidated revenues of the Parent Borrower and its Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Material Subsidiaries (other than Subsidiaries that are Excluded Subsidiaries by virtue of any of clauses (ii) through (xi) of the definition of “Excluded Subsidiary”) have, in the aggregate, (a) total assets at the last day of such Test Period equal to or greater than 5.0% of the Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries at such date or (b) revenues during such Test Period equal to or greater than 5.0% of the consolidated revenues of the Parent Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP, then the Parent Borrower shall, on the date on which financial statements for such quarter are delivered pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as Material Subsidiaries for each fiscal period until this proviso is no longer applicable.
Maturity Date shall mean the Initial Term Loan Maturity Date, the New Term Loan Maturity Date, the Revolving Credit Maturity Date, the maturity date of an Extended Term Loan or the maturity date of an Extended Revolving Credit Loan, as applicable.
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Maximum Incremental Facilities Amount” shall mean, at any date of determination, (i) the amount such that, after giving effect to the incurrence of such amount (and after giving effect to any adjustments required as a result of a contemplated Permitted Acquisition or Investment and, only in the case of a simultaneous incurrence of the maximum amount permitted to be incurred under this clause (i) on the date of such incurrence together with an incurrence in reliance on clause (ii) below on such date, without giving Pro Forma Effect to such simultaneous incurrence in reliance on clause (ii) below) (x) in connection with the incurrence of Indebtedness that is secured by the Collateral on a pari passu basis with the First Lien Obligations, the First Lien Net Leverage Ratio on a Pro Forma Basis would not exceed the greater of (I) 4.35 to 1.00 and (II) if incurred in connection with a Permitted Acquisition or other permitted Investment, the First Lien Net Leverage Ratio in effect as of the last day of the most recently ended Test Period, (y) in the case of Indebtedness that is secured on a junior basis to the First Lien Obligations (or secured by assets that are not Collateral), the Secured Net Leverage Ratio on a Pro Forma Basis would not exceed the greater of (I) 5.10 to 1.00 and (II) if incurred in connection with a Permitted Acquisition or other permitted Investment, the Secured Net Leverage Ratio in effect as of the last day of the most recently ended Test Period and (z) in the case of unsecured Indebtedness, Disqualified Stock or Non-Guarantor Subsidiary Preferred Stock, either (A) the Total Net Leverage Ratio on a Pro Forma Basis would not exceed the greater of (I) 5.60 to 1.00 and (II) if incurred in connection with a Permitted Acquisition or other permitted Investment, the Total Net Leverage Ratio in effect as of the last day of the most recently ended Test Period or (B) the Interest Coverage Ratio on a Pro Forma Basis would not be less than the lesser of (I) 1.75 to 1.00 and (II) if incurred in connection with a Permitted Acquisition or other permitted Investment, the Interest Coverage Ratio in effect as of last day of the most recently ended Test Period (in the case of each of (x), (y) or (z), assuming the Incremental Revolving Credit Commitments or revolving commitments in respect of Ratio Debt established at such time are fully drawn and assuming that any cash proceeds of any new Incremental Loans or Ratio Debt then being incurred shall not be netted from the numerator in the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio, as applicable, for purposes of calculating the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio, as applicable, under this clause (i) for purposes of determining whether such Incremental Loans and Ratio Debt can be incurred), plus (ii) the sum of (a) (x) the greater of $191,000,000 and 100.0% of Consolidated EBITDA for the most recently ended Test Period and (y) any unused portion of the basket set forth in Section 10.1(l) that the Parent Borrower elects to instead apply to this clause (y) from time to time (this clause (ii)(a), the “Shared Incremental Amount”), (b) the aggregate amount of voluntary prepayments of (1) Loans and (2) Ratio Debt (whether or not secured on a pari passu basis) and any other Indebtedness secured by a Lien on a pari passu basis with the Obligations, in each case, to the extent incurred using the Shared Incremental Amount (and, in the case of each of (1) and (2), including purchases of the Loans by Holdings, Parent Borrower and their Subsidiaries at or below par, in which case credit shall be given to the principal amount purchased) (subject to, in the case of any Loans that are not Term Loans, a corresponding commitment reduction), in each case, other than from proceeds of the incurrence of long-term Indebtedness, and (c) without duplication of clause (b), in the case of Incremental Loans or Ratio Debt the effect of which is to effectively extend the maturity of the Term Loans or the Revolving Credit Commitments, an amount equal to the reductions in the Term Loans or Revolving Credit Commitments to be replaced by such Incremental Loans or Ratio Debt (the preceding clauses (b) and (c), the “Prepayment and Extension Amount”), minus (iii) the sum of (a) the aggregate principal amount of New Loan Commitments incurred pursuant to Section 2.14(a) prior to such date and (b) the aggregate principal amount or liquidation preference of Ratio Debt issued or incurred prior to such date, in each case of this clause (iii) incurred in reliance on clause (ii) of this definition on or prior to such date; provided that the Parent Borrower, in its sole discretion, may from time to time classify or reclassify any portion of Incremental Loans or Ratio Debt that is incurred under clauses (i) or (ii); provided, further, that upon delivery of any Section 9.1 Financials or, at the election of the Parent Borrower, upon internal availability thereof, following the initial incurrence of any portion of
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Incremental Loans or Ratio Debt, if any such incurred Incremental Loans or Ratio Debt could, based on such Section 9.1 Financials, have been incurred in reliance on clause (i) of this definition, such incurred Incremental Loans or Ratio Debt shall automatically be reclassified as having been incurred under clause (i) of this definition.
Maximum Rate” shall have the meaning provided in Section 5.6(b).
MFN Exceptions shall have the meaning provided in Section 2.14(d).
MFN Provision shall have the meaning provided in Section 2.14(d).
Minimum Borrowing Amount shall mean (i) with respect to a Borrowing of EurocurrencyTerm SOFR Loans (1) in Dollars, $1,000,000 or (2) in Euro, €500,000, (ii) with respect to a Borrowing of Eurocurrency Loans in Euro, €500,000, (iii) with respect to a Borrowing of RFR Loans in Pounds Sterling, £500,000, (iiiiv) with respect to a Borrowing of ABR Loans, $1,000,000 and (ivv) otherwise, as mutually agreed by the Parent Borrower and the Administrative Agent (or in any case of this definition, if less, the entire remaining applicable Commitments at the time of such Borrowing).
Minimum Collateral Amount” shall mean, at any time, (i) with respect to Cash Collateral consisting of cash or Cash Equivalents or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 101% of the Fronting Exposure of the Letter of Credit Issuer with respect to Letters of Credit issued and outstanding at such time and (ii) with respect to Cash Collateral consisting of cash or Cash Equivalents or deposit account balances provided in accordance with Section 3.8(a)(i), (ii), or (iii), an amount equal to 101% of the outstanding amount of all L/C Obligations.
Minimum Tender Condition” shall have the meaning provided in Section 2.15(b).
Model” shall mean the financial model provided by or on behalf of the Parent Borrower to the Joint Lead Arrangers on March 15, 2021.
Moody’s” shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.
Mortgage” shall mean a mortgage, deed of trust, deed to secure debt, trust deed, or other security document entered into by the owner of a Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Parties in respect of that Mortgaged Property to secure the Obligations, in form and substance reasonably acceptable to the Collateral Agent and the Parent Borrower, together with such terms and provisions as may be required by local laws, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
Mortgaged Property” shall mean, initially, each parcel of real property (including fixtures) and the improvements thereto owned in fee by a Credit Party and identified on Schedule 1.1(c), and each other parcel of real property (including fixtures) and improvements thereto with respect to which a Mortgage is granted pursuant to Section 9.11 and 9.14.
Multiemployer Plan” shall mean a multiemployer plan as defined in Sections 3(37) and 4001(a)(3) of ERISA and in Section 414(f) of the Code, with respect to which any Credit Party or any ERISA Affiliate makes or is accruing any obligation to make contributions, or during the five preceding calendar years, has made or has accrued any obligation to make any contributions.
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Net Cash Proceeds shall mean, with respect to any Prepayment Event, (i) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable, but only as and when received) received by or on behalf of the Parent Borrower or any of its Restricted Subsidiaries in respect of such Prepayment Event, less (ii) the sum of:
(a)    the amount, if any, of all Taxes (including in connection with any repatriation of funds) paid or estimated to be payable by Holdings, the Parent Borrower or any of their Restricted Subsidiaries, Affiliates or direct or indirect equityholders in connection with such Prepayment Event,
(b)    the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (a) above) (1) associated with the assets that are the subject of such Prepayment Event and (2) retained by the Parent Borrower or any of its Restricted Subsidiaries; provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction,
(c)    the amount of any Indebtedness (other than First Lien Obligations) (i) secured by a Lien on the assets that are the subject of such Prepayment Event or (ii) with respect to which a non-Credit Party is bound to make a repayment with (or on account of) the proceeds of assets that are not Collateral, in each case to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon (or in connection with) consummation of such Prepayment Event,
(d)    [reserved],
(e)    in the case of any Asset Sale Prepayment Event, Casualty Event, or Permitted Sale Leaseback by a non-Wholly-Owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (e)) attributable to minority interests and not available for distribution to or for the account of the Parent Borrower or a Wholly-Owned Restricted Subsidiary as a result thereof,
(f)    in the case of any Asset Sale Prepayment Event or Permitted Sale Leaseback, any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction solely to the extent that the Parent Borrower and/or a Restricted Subsidiary receives cash in an amount equal to the amount of such reduction, and
(g)    all fees and out of pocket expenses paid by Holdings, the Parent Borrower or a Restricted Subsidiary, Affiliate or direct or indirect equityholder in connection with any of the foregoing (for the avoidance of doubt, including attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses, and brokerage, consultant, accountant, and other customary fees),
in each case only to the extent not already deducted in arriving at the amount referred to in clause (i) above.
Net Income” shall mean, with respect to any Person, the net income (loss) of such Person and its Restricted Subsidiaries, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.
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Net Outstandings” shall mean, with respect to an overdraft facility comprising more than one account, the Ancillary Outstandings of such overdraft facility.
Net Short Lender” shall have the meaning provided in Section 13.1(j).
net short position” shall have the meaning provided in Section 13.1(k)(iv).
New Loan Commitments” shall have the meaning provided in Section 2.14(a).
New Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
New Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
New Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).
New Term Loan shall have the meaning provided in Section 2.14(c).
New Term Loan Commitments” shall have the meaning provided in Section 2.14(a).
New Term Loan Lender shall have the meaning provided in Section 2.14(c).
New Term Loan Maturity Date shall mean the date on which a New Term Loan matures.
New Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
Non-Bank Tax Certificate” shall have the meaning provided in Section 5.4(e)(ii)(B)(iii).
Non-Consenting Lender” shall have the meaning provided in Section 13.7(b).
Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.
Non-Extension Notice Date” shall have the meaning provided in Section 3.2(d).
Non-Finance Lease Obligation” shall mean, as applied to any Person, a lease obligation of such Person that is not required to be accounted for as a finance or capital lease on both the balance sheet and the income statement of such Person for financial reporting purposes in accordance with GAAP. A straight-line or operating lease shall be considered a Non-Finance Lease Obligation.
Non-Guarantor Ratio Debt Cap” means, with respect to Ratio Debt and Permitted Debt Exchange Notes subject to the Non-Guarantor Ratio Debt Cap, the greater of $67,000,000 and 35.0% of Consolidated EBITDA for the most recently ended Test Period.
Non-Guarantor Subsidiary Preferred Stock” shall have the meaning provided in Section 10.1.
Non-U.S. Lender” shall mean any Lender that is not a U.S. Person.
Notice of Borrowing” shall have the meaning provided in Section 2.3(a).
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Notice of Conversion or Continuation shall have the meaning provided in Section 2.6(a).
Obligations shall mean all advances to, and debts, liabilities, obligations, covenants, and duties of, any Credit Party arising under any Credit Document or otherwise with respect to any Revolving Credit Commitment, Loan, or Letter of Credit or under any Secured Cash Management Agreement, Secured Hedge Agreement (other than with respect to any Credit Party’s obligations that constitute Excluded Swap Obligations solely with respect to such Credit Party), or Ancillary Facility, in each case, entered into with Holdings, the Parent Borrower or any of their Restricted Subsidiaries, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy, examinership or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Credit Parties under the Credit Documents (and any of their Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities, and other amounts payable by any Credit Party under any Credit Document.
Organizational Documents” shall mean (a) with respect to any corporation, its certificate or articles of incorporation or organization and its by-laws, (b) with respect to any limited partnership, its certificate or declaration of limited partnership and its partnership agreement, (c) with respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization or certificate of formation, and its operating agreement or limited liability company agreement and (e) with respect to any other form of entity, such other organizational documents required by local Requirements of Law or customary under the jurisdiction in which such entity is organized to document the formation and governance principles of such type of entity. In the event that any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
Original Credit Parties” shall mean the Borrowers and the Original Guarantors.
Original Guarantors” shall mean the Guarantors listed on Schedule 1.1(h).
Original Revolving Credit Commitments” shall mean all Revolving Credit Commitments, Existing Revolving Credit Commitments, and Extended Revolving Credit Commitments, other than any New Revolving Credit Commitments (and any Extended Revolving Credit Commitments related thereto).
Other First Lien Obligations” shall mean Indebtedness (other than Obligations) secured by Collateral on an equal priority basis (but without regard to the control of remedies) with the Liens on the Collateral securing the Obligations.
Other Taxes” shall mean all present or future stamp, registration, court or documentary Taxes or any other excise, intangible, mortgage recording, filing or similar Taxes arising from any payment made hereunder or under any other Credit Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Agreement or any other Credit Document; provided that such term shall not include any Taxes that result from an assignment (“Assignment Taxes”) to the extent such Assignment Taxes are imposed as a result of a connection between the assignor/participating Lender and/or the
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assignee/Participant and the taxing jurisdiction (other than a connection arising solely from any Credit Documents or any transactions contemplated thereunder), except to the extent that any such action described in this proviso is requested or required by any Borrower or Holdings.
Overnight Rate shall mean, for any day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate determined by the Administrative Agent or the Letter of Credit Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.
Parallel Debt” shall have the meaning provided in Section 12.14(a).
Parent” shall have the meaning provided in the recitals to this Agreement.
Parent Borrower” shall have the meaning provided in the preamble to this Agreement.
Parent Entity” shall mean Holdings and any other Person that is a direct or indirect parent entity (which may be organized as, among other things, a partnership) of the Parent Borrower, it being understood and agreed that, as of the Closing Date, the Parent is a Parent Entity.
Participant” shall have the meaning provided in Section 13.6(c)(i).
Participant Register” shall have the meaning provided in Section 13.6(c)(ii).
Participating Member State” shall mean any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.
Patriot Act” shall have the meaning provided in Section 13.18.
Payment Recipient” shall have the meaning provided in Section 12.16(a).
PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Pension Plan” shall mean any employee benefit pension plan (as defined in Section 3(2) of ERISA, but excluding any Multiemployer Plan) that is (i) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, (ii) sponsored or maintained (at the time of determination or at any time within five years prior thereto) by a Credit Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA, or has any liability (contingent or otherwise).
Perfection Requirements” shall mean the making of appropriate registrations, filings or notifications with respect to the Collateral as contemplated by (x) any legal opinion required to be delivered hereby or under the terms of any Credit Document, including the making of such filings and taking of such other actions required to be taken thereby, (y) any applicable Credit Document or (z) pursuant to applicable Requirement of Law (including the filing of appropriate financing statements with the office of the Secretary of State of the state of organization of each U.S. Credit Party or other equivalent financing statements in all other applicable jurisdictions, the filing of appropriate grants, assignments or notices with the U.S. Patent and Trademark Office and the U.S. Copyright Office, the proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Real Estate not constituting Excluded Real Property and otherwise constituting Collateral and any other recordings, filings, registrations, notifications or other actions required to be taken in any other jurisdiction), in each case in favor of the Collateral
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Agent for the benefit of the Secured Parties and the delivery to the Administrative Agent of any stock certificate or promissory note required to be delivered pursuant to the applicable Credit Documents.
Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
Permitted Acquisition” shall mean any acquisition by the Parent Borrower or any Restricted Subsidiary, whether by purchase, merger, amalgamating, consolidation or otherwise, of all or substantially all of the assets of, or any business line, unit or division of, any Person or of a majority of the outstanding Capital Stock of any Person (but in any event including any Investment in (x) any Restricted Subsidiary which serves to increase the Parent Borrower’s or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary or (y) any joint venture for the purpose of purchasing, any or all of the interests of any joint venture partner in a manner that results in such joint venture becoming a subsidiary), and all Investments undertaken to consummate such acquisition transaction; provided that:
(a)    such assets, business line, unit, division or Person, as applicable shall be in a Similar Business or other business permitted by Section 9.16 hereof;
(b)    (1) such Person becomes a Restricted Subsidiary; or (2) such Person, assets, line of business, unit or division, in each case, in one transaction or a series of related transactions, is merged, consolidated, or amalgamated with or into, or transfers or conveys substantially all of its assets to (or is acquired by) or is liquidated into the Parent Borrower or a Restricted Subsidiary;
(c)    with respect to each such acquisition, all actions required to be taken with respect to any such newly created or acquired Person or assets, in each case as applicable in order to satisfy the requirements of Section 9.11 shall have been taken (or arrangements for the taking of such actions after the consummation of the Permitted Acquisition shall have been made) (in each case unless such newly created or acquired Person constitutes an Excluded Subsidiary); and
(d)    at the applicable time set forth in Section 1.11(c), no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) shall have occurred and be continuing or would result from the execution of such agreement and the consummation of such acquisition.
Permitted Asset Swap” shall mean the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Parent Borrower or a Restricted Subsidiary and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 5.2.
Permitted Debt Exchange” shall have the meaning provided in Section 2.15(a).
Permitted Debt Exchange Notes” shall have the meaning provided in Section 2.15(a).
Permitted Debt Exchange Offer” shall have the meaning provided in Section 2.15(a).
Permitted Equity” shall mean common equity, Qualified Stock or any other instrument with terms reasonably acceptable to the Joint Lead Arrangers.
Permitted Holders” shall mean each of the Initial Investors and members of management of Holdings or the Parent Borrower (or any Parent Entity) and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group
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and without giving effect to the existence of such group or any other group, such Initial Investors and such members of management, collectively, have beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of Holdings or any Parent Entity owned, directly or indirectly, by such group.
Permitted Investments” shall mean:
(i)    any Investment in any Credit Party or any other Restricted Subsidiary, including the acquisition of a greater proportion of the Equity Interests of such Restricted Subsidiary;
(ii)    any Investment in cash, Cash Equivalents, or Investment Grade Securities, or Investments that were cash, Cash Equivalents or Investment Grade Securities at the time such Investment was made;
(iii)    Permitted Acquisitions;
(iv)    any Investment received in connection with an Asset Sale made pursuant to Section 10.4 or any other disposition of assets not constituting an Asset Sale;
(v)    (a) any Investment existing or contemplated on the Closing Date and, to the extent individually having a principal amount in excess of $10,000,000, listed on Schedule 10.5 and (b) Investments consisting of any modification, replacement, renewal, reinvestment or extension of any such Investment described in clause (a) above so long as no such modification, renewal, reinvestment or extension thereof increases the amount of such Investment except by the terms thereof (including as a result of the accrual or accretion of interest or original issue discount or the issuance of payment-in-kind securities) or as otherwise constituting a Permitted Investment or otherwise permitted by Section 10.5;
(vi)    Investments (including debt obligations and Capital Stock) received (A) in connection with the bankruptcy, work-out, reorganization or recapitalization of any Person, (B) in settlement or compromise of delinquent obligations of, or other disputes with or judgments against, customers, trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business, including pursuant to any plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier, licensee or other account debtor, (C) in satisfaction of judgments against other Persons, (D) as a result of foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (E) in settlement, compromise or resolution of litigation, arbitration or other disputes;
(vii)    Hedging Obligations permitted under Section 10.1 and Cash Management Services;
(viii)    Investments in Similar Businesses in an aggregate amount outstanding not to exceed the greater of $67,000,000 and 35.0% of Consolidated EBITDA for the most recently ended Test Period;
(ix)    Investments the payment for which consists of Equity Interests of Holdings or any Parent Entity; provided that such Equity Interests will not increase the amount available for Restricted Payments under clause (c), (d) or (i) of the definition of the Available Amount;
(x)    (A) issuance and guarantees of Indebtedness permitted under Section 10.1 (other than clause (g), (h), (i) or (q) thereof), (B) guarantees of leases or subleases or other obligations not constituting Indebtedness and (C) Investments consisting of guarantees of any supplier’s obligations in respect of commodity contracts, including
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Hedging Obligations solely to the extent such commodities relate to the materials or products to be purchased by the Parent Borrower or any Restricted Subsidiary;
(xi)    any transaction to the extent it constitutes an Investment that is permitted and made in accordance with Section 9.9 (except transactions described in clause (b) of such paragraph);
(xii)    Investments consisting of purchases and acquisitions of inventory, supplies, material, services, equipment, or other similar assets in the ordinary course of business;
(xiii)    additional Investments in an aggregate amount outstanding not to exceed (a) the greater of $96,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period, plus (b) the portion, if any, of the Available Amount on the date of such election that the applicable Borrower elects to apply to this subsection (b);
(xiv)    Investments in or relating to any Receivables Subsidiary that, in the good faith determination of the Parent Borrower, are necessary or advisable to effect a Receivables Facility (including any contribution of replacement or substitute assets to such Receivables Subsidiary) or any repurchases in connection therewith (including the contribution or lending of cash or Cash Equivalents to Subsidiaries to finance the purchase of such assets from the Parent Borrower or any Restricted Subsidiary or to otherwise fund required reserves and Investments of funds held in accounts permitted or required by the arrangements governing such Receivables Facility or any related Indebtedness);
(xv)    advances to, or guarantees of Indebtedness of, employees not in excess of the greater of $19,000,000 and 10.0% of Consolidated EBITDA for the most recently ended Test Period;
(xvi)    loans and advances to officers, directors, managers, and employees for business related travel expenses, moving expenses, and other similar expenses, in each case incurred in the ordinary course of business;
(xvii)    Investments consisting of rebates and extensions of trade credit (including in the nature of accounts receivable or notes receivable) in the ordinary course of business;
(xviii)    Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers, vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(xix)    Investments in subsidiaries and joint ventures in connection with reorganizations and/or restructurings, including any Permitted Reorganization and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents); provided that, after giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Collateral Agent in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a result of such reorganization, restructuring or tax planning activities;
(xx)    Investments (i) in connection with obtaining, maintaining or renewing client, franchisee and customer contracts, (ii) in the form of loans or advances made to,
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and guarantees with respect to obligations of franchisees, distributors, suppliers, licensors and licensees in the ordinary course of business or to the extent necessary to maintain the ordinary course of supplies to the Parent Borrower or any Restricted Subsidiary and/or (iii) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties;
(xxi)    (a) the licensing and purchase of Intellectual Property pursuant to joint marketing, collaboration or other similar arrangements with other Persons, in the ordinary course of business or (b) the sale, transfer, licensing, sublicensing or contribution of any Intellectual Property, for bona fide operational restructuring, tax-planning or other similar purposes, to the Parent Borrower or any Restricted Subsidiary;
(xxii)    any additional Investments; provided that after giving Pro Forma Effect to such Investments, the Total Net Leverage Ratio is equal to or less than 3.85 to 1.00;
(xxiii) Investments made in connection with the Transactions;
(xxiv) Investments made (i) in joint ventures or (ii) in connection with the creation, formation and/or acquisition of any joint venture in an aggregate amount outstanding not to exceed the greater of $77,000,000 and 40.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(xxv) Investments made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding arrangements;
(xxvi) Investments in Unrestricted Subsidiaries (including any joint venture that is an Unrestricted Subsidiary) in an aggregate amount outstanding not to exceed the greater of $67,000,000 and 35.0% of Consolidated EBITDA for the most recently ended Test Period;
(xxvii) Investments consisting of (or resulting from) Permitted Liens, Restricted Payments permitted under Section 10.5 and mergers, consolidations, amalgamations, liquidations, windings up, dissolutions or dispositions permitted by Section 10.3;
(xxviii) loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers or consultants of any Parent Entity (to the extent such payments or other compensation relate to services provided to such Parent Entity (but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any subsidiary of any Parent Entity other than the Parent Borrower and/or its subsidiaries)), the Parent Borrower and/or any subsidiary in the ordinary course of business;
(xxix) (A) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated with, the Parent Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (B) any modification, replacement, renewal or extension of any Investment permitted under clause (A) of this clause (xxix) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by Section 10.5;
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(xxx) (A) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded under applicable Requirements of Law and (B) Investments made in connection with any nonqualified deferred compensation plan or arrangement;
(xxxi) Investments in Holdings, the Parent Borrower, any subsidiary and/or any joint venture in connection with intercompany cash management arrangements and related activities in the ordinary course of business;
(xxxii) any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted Subsidiary (but for the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as the relevant Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(xxxiii) the conversion to Qualified Stock of the Parent Borrower or any Restricted Subsidiary or to Capital Stock of any Parent Entity of any Indebtedness owed by any Borrower or any Restricted Subsidiary and permitted by Section 10.1;
(xxxiv)    contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Parent Borrower or any of its Restricted Subsidiaries;
(xxxv)    [reserved];
(xxxvi) Investments consisting of earnest money deposits required in connection with purchase agreements or other acquisitions, Permitted Investments or other Investments permitted under Section 10.5 and any other pledges or deposits permitted by Section 10.2;
(xxxvii) Term Loans repurchased by Holdings, the Parent Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with this Agreement and any other Indebtedness of the Parent Borrower or any Restricted Subsidiary repurchased, redeemed or retired by the Parent Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation or termination in accordance with the terms of such other Indebtedness; and
(xxxviii) guarantee obligations of the Parent Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Restricted Subsidiary of the Parent Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States.
Permitted Liens” shall mean, with respect to any Person:
(i)    pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws, or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness), or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for the payment of rent or deposits made to secure obligations arising from contractual or warranty refunds, in each case incurred in the ordinary course of business;
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(ii)    Liens imposed by statutory or common law (and rights of setoff), such as carriers’, warehousemen’s, materialmen’s, repairmen’s, builders’ and mechanics’ Liens, in each case (A) for sums not yet overdue for a period of more than 60 days or (B) for sums overdue for more than 60 days (1) that are being contested in good faith by appropriate proceedings, (2) with regard to which no filing or action has been taken to enforce such Lien or (3) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect, or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(iii)    Liens for taxes, assessments, or other governmental charges not yet overdue for a period of more than 60 days or, if more than 60 days (i) which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP or are not required to be paid pursuant to Section 8.11, (ii) which are for property taxes on the property of the Parent Borrower or one of its Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy, or claim is to such property or (iii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(iv)    Liens incurred (A) in the ordinary course of business in connection with workers’ compensation, unemployment insurance, health, disability or employee benefits and other types of social security laws and regulations, (B) in the ordinary course of business to secure the performance of tenders, statutory obligations, warranties, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts (including customer contracts), indemnitees, performance, completion and return-of-money bonds and other similar obligations (including those to secure (x) health, safety and environmental obligations and (y) letters of credit and bank guarantees required or requested by any Governmental Authority in connection with any contract or Requirement of Law) (exclusive of obligations for the payment of borrowed money), (C) pursuant to pledges and deposits of cash or Cash Equivalents or the granting of other security in the ordinary course of business securing (x) any liability for reimbursement (including in respect of deductibles, self-insurance retention amounts and premiums and adjustments related thereto), premium or indemnification obligations of insurance brokers or carriers providing property, casualty, liability or other insurance or self-insurance to Holdings, the Parent Borrower and its subsidiaries (including deductibles, self-insurance, co-payment, co-insurance and retentions) or (y) leases, subleases, licenses or sublicenses of property otherwise permitted by this Agreement and (D) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments posted with respect to the items described in clauses (A) through (C) above;
(v)    Liens consisting of easements, covenants, conditions, site plan agreements, development agreements, operating agreements, cross-easement agreements, reciprocal easement agreements and encumbrances, applicable laws and municipal ordinances, rights-of-way, rights, waivers, reservations, restrictions, encroachments, servitudes for railways, sewers, drains, gas and oil and other pipelines, gas and water mains, electric light and power and telecommunication, telephone or telegraph or cable television conduits, poles, wires and cables and other similar protrusions or encumbrances, agreements and other similar matters of fact or record and matters that would be disclosed by a survey or inspection of any real property and other minor defects or irregularities in title, in each case (x) which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Parent Borrower and/or its Restricted Subsidiaries, taken as a whole, or (y) where the failure to have such title or having such Lien would not reasonably be expected to have a Material Adverse Effect;
(vi)    Liens securing Indebtedness permitted to be outstanding pursuant to clause (a), (d), (m), (r), (v) or (y) of Section 10.1; provided that, (a) in the case of clause (d) of Section 10.1, any such Lien shall encumber only the assets (including Capital Stock) acquired, constructed, repaired, replaced or improved with the proceeds of such Indebtedness, or the assets subject to the Sale Leaseback, as applicable, and proceeds and products thereof, replacements, accessions or
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additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that individual financings of the type permitted thereunder provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates); (b) in the case of clause (m) of Section 10.1, (x) the applicable Refinancing Indebtedness is permitted to be secured pursuant to such clause (m) and (y) such new Lien shall be limited to all or part of the same property that secured or would have been subject to the original Lien (and additions thereto, improvements thereon and the proceeds thereof), (c) in the case of clause (r) of Section 10.1, such Lien may not extend to any assets other than the Capital Stock of, and the assets owned by, the Restricted Subsidiaries incurring or guaranteeing such Indebtedness; and (d) in the case of Liens on Collateral securing Permitted Debt Exchange Notes, the applicable secured parties (or a representative thereof on behalf of such holders) shall be subject to the Intercreditor Agreement Requirement;
(vii)    subject to Section 9.14, Liens existing on the Closing Date; provided that any Lien securing Indebtedness or other obligations in excess of $10,000,000 individually (determined by reference to exchange rates as of the Closing Date) shall only be permitted if set forth on Schedule 10.2, and, in each case, any modifications, replacements, refinancing, renewals, or extensions thereof;
(viii)    Liens on property or Equity Interests of a Person at the time such Person becomes a Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided, further, however, that such Liens may not extend to any other property owned by the Parent Borrower or any Restricted Subsidiary (other than, with respect to such Person, the proceeds or products of such property or assets, any replacements of such property or assets and additions and accessions thereto, any improvements thereon, after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property of such Person, and the proceeds and the products thereof and customary security deposits in respect thereof (it being understood that individual financings of the type permitted under Section 10.1(d) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates));
(ix)    Liens on property at the time the Parent Borrower or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Parent Borrower or any Restricted Subsidiary or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger, consolidation, or designation; provided, further, however, that such Liens may not extend to any other property owned by the Parent Borrower or any Restricted Subsidiary (other than, with respect to such property, the proceeds or products of such property or assets, any replacements of such property or assets and additions and accessions thereto, any improvements thereon, after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, and the proceeds and the products thereof and customary security deposits in respect thereof (it being understood that individual financings of the type permitted under Section 10.1(d) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates));
(x)    Liens on assets and Capital Stock of Restricted Subsidiaries that are not Credit Parties securing Indebtedness or other obligations of Restricted Subsidiaries that are not Credit Parties permitted pursuant to Section 10.1;
(xi)    Liens securing Hedging Obligations and Cash Management Services otherwise permitted hereunder; provided that, at the election of the Parent Borrower, the Collateral Agent and the Parent Borrower shall enter into an Acceptable Intercreditor Agreement providing for pari passu or junior Lien priority with respect to such Indebtedness or other obligations;
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(xii)    Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of commercial letters of credit or bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(xiii)    (A) leases, licenses, subleases, sublicenses or cross-licenses granted to others, (B) Liens (including, without limitation, negative pledges) on Intellectual Property arising from licenses or sublicenses of Intellectual Property and (C) assignments of Intellectual Property rights granted to a customer of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness;
(xiv)    Liens (A) that are precautionary or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable Requirements of Law relating solely to (1) operating leases or consignment or bailee arrangements entered into in the ordinary course of business, (2) the sale of accounts receivable in the ordinary course of business for which a UCC financing statement or similar financing statement under applicable Requirements of Law is required and/or (3) the sale of accounts receivable and related assets in connection with any Receivables Facility or (B) arising by operation of law under Article 2 of the UCC (or any similar Requirement of Law of any jurisdiction);
(xv)    Liens in favor of any Credit Party or granted by any Restricted Subsidiary that is not a Credit Party in favor of any other Restricted Subsidiary that is not a Credit Party;
(xvi)    Liens on equipment of the Parent Borrower or any Restricted Subsidiary granted in the ordinary course of business to the Parent Borrower’s or such Restricted Subsidiary’s client at which such equipment is located;
(xvii)    Liens on Receivables Facility Assets, accounts receivable, related assets and other assets of a Receivables Subsidiary incurred in connection with a Receivables Facility;
(xviii)    Liens to secure any refinancing, refunding, extension, renewal, or replacement (or successive refinancing, refunding, extensions, renewals, or replacements) as a whole, or in part, of any Indebtedness or other obligation secured by any Lien referred to in clauses (vi), (vii), (viii), (ix), and (xv) of this definition of Permitted Liens; provided that (a) such new Lien shall be limited to all or part of the same property that secured or would have been subject to the original Lien (and additions thereto, improvements thereon and the proceeds thereof), and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (1) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (vi), (vii), (viii), (ix), and (xv) at the time the original Lien became a Permitted Lien under this Agreement, and (2) an amount necessary to pay any fees and expenses, including premiums and accrued and unpaid interest, related to such refinancing, refunding, extension, renewal, or replacement;
(xix)    [reserved];
(xx)    other Liens securing obligations which do not exceed the sum of (a) the greater of $48,000,000 and 25.0% of Consolidated EBITDA for the most recently ended Test Period at the time of the incurrence of such Lien; provided that, at the election of the Parent Borrower, the Collateral Agent and the Parent Borrower shall enter into an Acceptable Intercreditor Agreement providing for junior Lien priority (but not pari passu priority) with respect to such obligations plus (b) the Available Amount; provided that the outstanding principal amount or liquidation preference of obligations secured by Liens pursuant to this clause (b) shall reduce the Available Amount accordingly;
(xxi)    (i) Liens securing judgments not constituting an Event of Default under Section 11.5 or Section 11.10 and (ii) any cash deposits securing any settlement of litigation;
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(xxii)    Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(xxiii)    Liens (A) that are contractual rights of set-off or netting relating to (1) the establishment of depositary relations with banks or other financial institutions not granted in connection with the issuance of Indebtedness, (2) pooled deposit or sweep accounts of the Parent Borrower and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Parent Borrower and/or any Restricted Subsidiary, (3) purchase orders and other agreements entered into with customers of the Borrower and/or any Restricted Subsidiary in the ordinary course of business or (4)  trading or other brokerage accounts incurred in the ordinary course of business, (B) Liens encumbering reasonable customary initial deposits and margin deposits, (C) bankers Liens and rights and remedies as to deposit accounts or similar accounts, (D) Liens of a collection bank arising under Section 4-208 or Section 4-210 of the UCC (or any similar Requirement of Law of any jurisdiction) on items in the ordinary course of business or (E) Liens (including rights of set-off) in favor of banking or other financial institutions arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions;
(xxiv)    Liens on securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section 10.5 arising out of such repurchase transaction;
(xxv)    Liens (i) solely on any cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by the Parent Borrower and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder (or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof), (ii) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 10.5 to be applied against the purchase price for such Investment or (iii) consisting of (A) an agreement to dispose of any property in a disposition permitted under Section 10.4 or otherwise not constituting an Asset Sale and/or (B) the pledge of Cash or Cash Equivalents as part of an escrow or similar arrangement required in any disposition permitted under Section 10.4 or otherwise not constituting an Asset Sale;
(xxvi)    (A) the reservations, limitations, provisos and conditions, if any, expressed in any original grant from the Crown of any real property or any interest therein, (B) rights reserved or vested in any Person by the terms of any lease, license, franchise, grant, or permit held by the Parent Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant, or permit, or to require annual or periodic payments as a condition to the continuance thereof and (C) Liens consisting of any (1) interest or title of a lessor, sub-lessor, licensor or sub-licensor under any lease, sub-lease, license, sublicense or similar arrangement of real estate or other property (including any technology or intellectual property) permitted hereunder, (2) landlord lien arising by law or permitted by the terms of any lease, sub-lease, license, sublicense or similar arrangement, (3) restriction or encumbrance to which the interest or title of such lessor, sub-lessor, licensor or sub-licensor may be subject, (4) subordination of the interest of the lessee, sub-lessee, licensee or sub-licensee under such lease, sub-lease, license, sublicense or similar arrangement to any restriction or encumbrance referred to in the preceding clause (3) or (4) deposit of cash with the owner or lessor of premises leased and operated by the Parent Borrower or any Restricted Subsidiary in the ordinary course of business to secure the performance of obligations under the terms of the lease for such premises;
(xxvii)    restrictive covenants affecting the use to which real property may be put;
(xxviii)    security given to a public utility or any municipality or Governmental Authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business;
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(xxix)    Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
(xxx)    Liens arising out of conditional sale, title retention, consignment, or similar arrangements for sale of goods entered into by the Parent Borrower or any Restricted Subsidiary in the ordinary course of business;
(xxxi)    Liens arising under the Security Documents;
(xxxii)    Liens on goods purchased in the ordinary course of business the purchase price of which is financed by a commercial letter of credit issued for the account of the Parent Borrower, the Borrowers or any of their Subsidiaries;
(xxxiii)    (a) Liens on Equity Interests in joint ventures, (b) Liens on Equity Interests in Unrestricted Subsidiaries, (c) purchase options, call, and similar rights of, and restrictions for the benefit of, a third party with respect to Equity Interests held by the Parent Borrower or any Restricted Subsidiary in joint ventures and (d) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-wholly-owned Subsidiaries;
(xxxiv)    Liens on cash and Cash Equivalents that are earmarked to be used to satisfy or discharge Indebtedness; provided (a) such cash and/or Cash Equivalents are deposited into an account from which payment is to be made, directly or indirectly, to the Person or Persons holding the Indebtedness that is to be satisfied or discharged, (b) such Liens extend solely to the account in which such cash and/or Cash Equivalents are deposited and are solely in favor of the Person or Persons holding the Indebtedness (or any agent or trustee for such Person or Persons) that is to be satisfied or discharged, and (c) the satisfaction or discharge of such Indebtedness is expressly permitted hereunder;
(xxxv)     with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by any Requirement of Law; provided that such Liens and privileges extend only to the assets or Capital Stock of such Foreign Subsidiary;
(xxxvi) Liens securing Secured Ratio Debt permitted under Section 10.1; provided that to the extent such Liens encumber any portion of the Collateral the Intercreditor Agreement Requirement shall be required to be satisfied;
(xxxvii) Liens securing Priority Obligations;
(xxxviii) receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof;
(xxxix) Liens under extended retention of title arrangements (verlängerter Eigentumsvorbehalt) under German law;
(xl)    any statutory Lien (Gesetzliches Pfandrecht) arising by operation of law under the German Civil Code or the German Commercial Code (Handelsgesetzbuch), including without limitation under a lease agreement in favor of the relevant third party landlord (Vermieterpfandrecht) or under a warehousing agreement in favor of the relevant warehouse operator (Pfandrecht des Lagerhalters);
(xli)    any Lien given in order to comply with the requirements under section 8a of the German Act on Partial Retirement (Alterszeitgesetz) or under section 7e of the Fourth Book of the German Social Code (Sozialgesetzbuch IV);
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(xlii)    with respect to any real estate located in Germany, any Lien to the extent that the granting of such Lien cannot be restricted pursuant to section 1136 (alone or in conjunction with section 119a paragraph 1) of the German Civil Code;
(xliii)    Liens arising under the general terms and conditions of banks (Allgemeine Geschäftsbedingungen der Banken und Sparkassen) in relation to accounts in Germany;
(xliv)    Liens (whether in the form of a pledge or contractual right of set-off) resulting from the general terms and conditions of any Belgian credit institution entered into by a Restricted Subsidiary in the framework of its ordinary banking arrangements;
(xlv)    Liens on assets not constituting Collateral;
(xlvi)    Liens on assets securing Indebtedness or other obligations in an aggregate principal amount not to exceed the greater of $67,000,000 and 35.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period; provided that, at the election of the Parent Borrower, the Collateral Agent and the Parent Borrower shall enter into an Acceptable Intercreditor Agreement providing for pari passu or junior Lien priority with respect to such Indebtedness or other obligations;
(xlvii)    Liens that are customary in the business of the Parent Borrower and its Restricted Subsidiaries and that do not secure Indebtedness for borrowed money;
(xlviii)    Liens arising solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the Transactions, any Permitted Acquisition or other similar Investment;
(xlix)    Liens arising out of Sale Leasebacks permitted under Section 10.4 (or otherwise not constituting an Asset Sale) provided any related Indebtedness is permitted under Section 10.1;
(l)    Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Parent Borrower and/or its Restricted Subsidiaries;
(li)    Liens disclosed in any Mortgage or Title Policy delivered pursuant to the Credit Documents with respect to any Mortgaged Property, and any replacement, extension or renewal of any such Lien; provided that no such replacement, extension or renewal Lien shall cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon and the proceeds thereof);
(lii)    undetermined or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been filed or exercised, or which relate to obligations not due or payable or, if due, the validity of such Liens are being contested in good faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(liii)    ground leases or subleases in respect of real property on which facilities owned or leased by the Parent Borrower or any of its Restricted Subsidiaries are located;
(liv)    security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(lv)    Liens arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar provision of any applicable law;
(lvi)    Liens granted pursuant to a security agreement between the Parent Borrower or any Restricted Subsidiary and a licensee of Intellectual Property rights to secure the damages, if
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any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization or similar proceeding with respect to the Parent Borrower or such Restricted Subsidiary; and
(lvii)    Liens on the proceeds of any Indebtedness permitted hereunder incurred in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction or on cash or Cash Equivalents set aside at the time of the incurrence of such Indebtedness to the extent such cash or Cash Equivalents prefund the payment of interest or fees on such Indebtedness and are held in escrow pending application for such purpose.
Permitted Reorganization” shall mean any transaction or undertaking, including Investments, in connection with internal reorganizations and or restructurings (including in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto, (a) the Credit Parties shall comply with the collateral and guarantee requirements and Section 9.11 and (b) the security interest of the Secured Parties in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior to such Permitted Reorganization no longer constituting Collateral) as a result of such Permitted Reorganization. “Permitted Reorganization” shall, subject to clauses (a) and (b) of the preceding sentence, include any “push down” of all or a portion of the Obligations hereunder, directly or indirectly, to a subsidiary of a Borrower reasonably acceptable to the Administrative Agent (by assignment, assumption, merger, novation or any other means reasonably acceptable to the Administrative Agent).
Permitted Sale Leaseback” shall mean any Sale Leaseback consummated by the Parent Borrower or any of its Restricted Subsidiaries after the Closing Date; provided that any such Sale Leaseback not between the Parent Borrower and a Restricted Subsidiary is consummated for Fair Market Value (which such determination may take into account any retained interest or other Investment of the Parent Borrower or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).
Permitted Subordinated Shareholder Debt Payments” shall mean cash payments with respect to shareholder loans owing to management of Holdings, the Parent Borrower or any Parent Entity not to exceed the greater of $3,000,000 and 1.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period in any fiscal year of the Parent Borrower so long as no Default or Event of Default has occurred or is continuing (or would result therefrom).
Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust, or other enterprise or any Governmental Authority.
PIPE Financing” shall have the meaning provided in the recitals to this Agreement.
Planned Expenditures” shall have the meaning provided in the definition of Additional ECF Prepayment Reduction Amounts.
Platform shall have the meaning provided in Section 13.17(a).
Pledge Agreement” shall mean the Pledge Agreement, entered into by Holdings and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C.
Pounds Sterling” and “£” means the lawful currency of the United Kingdom.
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Prepayment Event” shall mean any Asset Sale Prepayment Event, Debt Incurrence Prepayment Event, Casualty Event, or any Permitted Sale Leaseback.
Previously Designated Unrestricted Subsidiary” shall have the meaning provided in Section 9.17.
primary obligor” shall have the meaning provided such term in the definition of Contingent Obligations.
Principal Obligations” shall have the meaning provided in Section 12.14(a).
Priority Obligation” shall mean any obligation that is secured by a Lien on any Collateral in favor of a Governmental Authority, which Lien pursuant to applicable Requirement of Law ranks or is capable of ranking prior to or pari passu with the Liens thereon created by the applicable Security Documents, including any such Lien securing amounts owing for wages, vacation pay, severance pay, employee deductions, sales tax, excise tax, other Taxes, workers compensation, government royalties and stumpage or pension fund obligations.
Pro Forma Basis,” Pro Forma Compliance,” and “Pro Forma Effect shall mean, with respect to compliance with any test, financial ratio, or covenant hereunder and any applicable period, that:
(i)    (A) there shall be included in determining Consolidated EBITDA for the Parent Borrower and its Restricted Subsidiaries for such period, without duplication, the Acquired EBITDA of any Person or business, or attributable to any property or asset, acquired (including by way of merger) by the Parent Borrower or any Restricted Subsidiary during such period, or to any Person that became a Restricted Subsidiary of the Parent Borrower during such period, in each case to the extent not subsequently sold, transferred, abandoned, or otherwise disposed by the Parent Borrower or such Restricted Subsidiary during such period (each such Person, business, property, or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion) and (B) income statement items (whether positive or negative) attributable to any Acquired Entity or Business or Converted Restricted Subsidiary shall be included throughout the applicable period;
(ii)    (A) to the extent included in Consolidated Net Income for the Parent Borrower and its Restricted Subsidiaries, there shall be excluded in determining Consolidated EBITDA for the Parent Borrower and its Restricted Subsidiaries for such period the Disposed EBITDA of any Person, property, business, or asset sold, transferred, abandoned, or otherwise disposed of, closed or classified as discontinued operations by the Parent Borrower or any Restricted Subsidiary, or any Person that ceased to be a Restricted Subsidiary of the Parent Borrower, in each case during such period (each such Person, property, business, or asset so sold or disposed of, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”) based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, or disposition or conversion) and (B) income statement items (whether positive or negative) attributable to any Sold Entity or Business or Converted Unrestricted Subsidiary shall be excluded throughout the applicable period;
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(iii)    any retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes) shall be deemed to have occurred as of the first day of the applicable period;
(iv)    any Indebtedness incurred by the Parent Borrower or any of its Restricted Subsidiaries in connection with any Acquired Entity or Business or Sold Entity or Business shall be deemed to have occurred as of the first day of the applicable period; and
(v)    Expected Cost Savings shall be given effect as though realized on the first day of such period;
provided, however, that the Parent Borrower may elect not to give Pro Forma Effect to the event resulting in an Acquired Entity or Business, Converted Restricted Subsidiary, Sold Entity or Business or Converted Unrestricted Subsidiary to the extent the aggregate consideration for the applicable Acquired Entity or Business or Sold Entity or Business, or the Fair Market Value of the net assets of the applicable Converted Restricted Subsidiary or Converted Unrestricted Subsidiary, as the case may be, is estimated in good faith by the Parent Borrower to not exceed $20,000,000.
If any Indebtedness bears a floating rate of interest and is being given Pro Forma Effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account for such entire period, any Hedging Obligation applicable to such Indebtedness with a remaining term of 12 months or longer, and in the case of any Hedging Obligation applicable to such Indebtedness with a remaining term of less than 12 months, taking into account such Hedging Obligation to the extent of its remaining term), or any reasonable approximation thereof as determined by the Parent Borrower. Interest on a Finance Lease Obligation shall be deemed to accrue at an interest rate as set forth in the definition of “Consolidated Interest Expense”. For purposes of making the computation referred to above, interest on any revolving Indebtedness under a revolving credit facility computed on a Pro Forma Basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period (or, if lower, the greater of (i) maximum commitments under such revolving credit facilities as of the date of determination and (ii) the aggregate principal amount of loans outstanding under such a revolving credit facilities on such date). Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, SOFR, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Parent Borrower may designate.
Pro Forma Entity” shall have the meaning provided in the definition of the term Acquired EBITDA.
PTE” shall mean 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 Company Costs” shall mean costs relating to compliance with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended (and in each case, any similar Requirement of Law under any other applicable jurisdiction), as applicable to companies with equity or debt securities held by the public or companies with listed equity or debt securities, the rules of national securities exchanges, directors’ or managers’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees.
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Purchase Money Indebtedness” shall mean and include (i) Indebtedness for borrowed money (other than the Obligations) of any Credit Party or Restricted Subsidiary thereof for the payment of all or any part of the purchase price of any equipment, real property or other fixed assets, (ii) any Indebtedness for borrowed money (other than the Obligations) of any Credit Party or Restricted Subsidiary incurred at the time of or within one-hundred and eighty (180) days prior to or one-hundred and eighty (180) days after the acquisition of any equipment, real property or other fixed assets for the purpose of financing all or any part of the purchase price thereof (whether by means of a loan agreement, capitalized lease or otherwise), and (iii) any renewals or extensions of the foregoing.
QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
QFC Credit Support” has the meaning provided in Section 13.24.
QofE” shall mean those reports listed on Schedule 1.1(g) prepared in connection with the Acquisition.
Qualified Stock” of any Person shall mean Capital Stock of such Person other than Disqualified Stock of such Person; provided that Subordinated Shareholder Debt shall constitute Qualified Stock.
Ratio Debt” shall have the meaning provided in Section 10.1.
Real Estate shall have the meaning provided in Section 9.1(f).
Receivables Facility” shall mean any of one or more receivables financing facilities or securitization financing facilities (and any guarantee of such financing facility), as amended, supplemented, modified, extended, renewed, restated, or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants, and indemnities made in connection with such facilities) to the Parent Borrower and the Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Parent Borrower or any Restricted Subsidiary sells, directly or indirectly, grants a security interest in or otherwise transfers its Receivables Facility Assets to either (i) a Person that is not a Restricted Subsidiary or (ii) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its Receivables Facility Assets to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person.
Receivables Facility Assets” shall mean (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage receivable or related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily transferred therewith, in each case subject to a Receivables Facility.
Receivables Fee” shall mean distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.
Receivables Subsidiary” shall mean any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging in a Receivables Facility in which the Parent Borrower or any Subsidiary makes an
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Investment and to which the Parent Borrower or any Subsidiary transfers Receivables Facility Assets.
refinance” shall have the meaning provided in Section 10.1(m)
Refinanced Term Loans” shall have the meaning provided in Section 13.1(f).
Refinancing Indebtedness” shall have the meaning provided in Section 10.1(m).
Refunding Capital Stock” shall have the meaning provided in Section 10.5(b)(ii).
Register” shall have the meaning provided in Section 13.6(b)(iv).
Regulated Bank” shall have the meaning provided in Section 13.1(k)(iii).
Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
Regulation X shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
Reimbursement Date” shall have the meaning provided in Section 3.4(a).
Reimbursement Obligations” shall mean the Borrowers’ obligations to reimburse Unpaid Drawings pursuant to Section 3.4(a).
Reinvestment Period shall mean 18 months following the date of receipt of Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event, or Permitted Sale Leaseback; provided, however, that such amount shall be extended to 24 months if during such 18 month period the subject Person shall have entered to a binding agreement to reinvest.
Reinvestment Right” shall have the meaning provided in Section 5.2(a)(iii).
Rejection Notice” shall have the meaning provided in Section 5.2(f).
Related Business Assets” shall mean assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Parent Borrower or the Restricted Subsidiaries in exchange for assets transferred by the Parent Borrower or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
Related Fund” shall mean, with respect to any Lender that is a Fund, any other Fund that is advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of such entity that administers, advises or manages such Lender.
Related Parties shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees, and advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.
Release” shall mean any release, spill, emission, discharge, disposal, escaping, leaking, pumping, pouring, dumping, emptying, injection, or leaching into the environment.
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Relevant Governmental Body” shall mean the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
Repayment Amount shall mean the Initial Term Loan Repayment Amount, a New Term Loan Repayment Amount with respect to any Series, or an Extended Term Loan Repayment Amount with respect to any Extension Series, as applicable.
Replacement Term Loan Commitment” shall mean the commitments of the Lenders to make Replacement Term Loans.
Replacement Term Loans shall have the meaning provided in Section 13.1(f).
Repricing Transaction” shall mean (i) the incurrence by a Borrower of Indebtedness in the form of a broadly syndicated first-lien term loan (a) having an Effective Yield for the corresponding Type and currency of such Indebtedness that is less than the Effective Yield for the Initial Term Loans of the equivalent Type and currency and (b) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Initial Term Loans of the equivalent currency, but excluding, for all purposes of this clause (i), Indebtedness incurred in connection with a dividend recapitalization, a transaction resulting in an upsizing of a Term FacilityLoans, a Change of Control or a Transformative Transaction or (ii) any effective reduction in the Effective Yield for the Initial Term Loans (e.g., by way of amendment, waiver or otherwise), except for a reduction in connection with a dividend recapitalization, a transaction resulting in an upsizing of a Term FacilityLoans, a Change of Control or a Transformative Transaction. Any determination by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and binding on all Lenders holding the Initial Term Loans.
Required Facility Lenders” means, with respect to any Class or Classes of Loans and/or Commitments, Lenders that would constitute Required Lenders if such Class or Classes of Loans and/or Commitments was the only Class, or were the only Classes, as the case may be, of Loans and Commitments hereunder.
Required Lenders” shall mean, at any date, (i) Non-Defaulting Lenders having or holding a majority of the sum of (a) the Adjusted Total Revolving Credit Commitment at such date, (b) the Adjusted Total Term Loan Commitment at such date, (c) the Adjusted Total Ancillary Commitment at such date and (d) the outstanding principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date or (ii) if the Total Revolving Credit Commitment, the Total Term Loan Commitment and the Total Ancillary Commitment have been terminated or for the purposes of acceleration pursuant to Section 11, Non-Defaulting Lenders having or holding a majority of the outstanding principal amount of the Loans, Ancillary Outstandings and Letter of Credit Exposure (excluding the Loans, Ancillary Outstandings and Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such date; provided, that Term Loan Commitments held by Affiliated Institutional Lenders shall not constitute more than 49.9% of the Term Loan Commitments in any calculation of the Required Lenders for the purpose of waivers or amendments under this Agreement.
Required Revolving Credit Lenders” shall mean, at any date, Non-Defaulting Lenders holding a majority of the sum of (a) the Adjusted Total Revolving Credit Commitment at such date and (b) the Adjusted Total Ancillary Commitment at such date (or, if the Total Revolving Credit Commitment and the Total Ancillary Commitment have been terminated at such time, a majority of the Revolving Credit Exposure and Ancillary Outstandings (excluding Revolving Credit Exposure and Ancillary Outstandings of Defaulting Lenders) at such time).
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Required Term Loan Lenders shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (i) the Adjusted Total Term Loan Commitment at such date and (ii) the aggregate outstanding principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date.
Requirement of Law” shall mean, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule, or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or assets or to which such Person or any of its property or assets is subject.
Resignation Effective Date” shall have the meaning provided in Section 12.9(a).
Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Restricted Debt Payments” shall have the meaning provided in Section 10.5(a)(iii).
Restricted Investment” shall mean an Investment other than a Permitted Investment.
Restricted Payments” shall have the meaning provided in Section 10.5(a).
Restricted Persons” shall have the meaning provided in Section 13.16.
Restricted Subsidiary” shall mean any Subsidiary of the Parent Borrower other than an Unrestricted Subsidiary.
Retained Asset Sale Proceeds” means, at any date of determination, an amount determined on a cumulative basis that is equal to the aggregate cumulative sum of all Net Cash Proceeds in respect of Asset Sale Prepayment Events and Casualty Events received by the Parent Borrower or any of its Restricted Subsidiaries that are not or were not required to be applied to prepay Term Loans pursuant to the proviso to the definition of “Asset Sale Prepayment Event” or the first proviso to Section 5.2(a)(i).
Retained Declined Proceeds shall have the meaning provided in Section 5.2(f).
Retired Capital Stock” shall have the meaning provided in Section 10.5(b)(ii).
Revolving Credit Commitment” shall mean, as to each Revolving Credit Lender, its obligation to make Revolving Credit Loans to the Borrowers pursuant to Section 2.1(b), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite such Lender’s name on Schedule 1.1(b) under the caption “Revolving Credit Commitment” or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14 and Section 2.16(b)(i)). The aggregate Revolving Credit Commitments of all Revolving Credit Lenders as of the Closing Date is $90,000,000 (the “Initial Revolving Credit Commitments”).
Revolving Credit Commitment Percentage” shall mean at any time, for each Lender, the percentage obtained by dividing (i) such Lender’s Revolving Credit Commitment at such time by (ii) the amount of the Total Revolving Credit Commitment at such time; provided that at any time when the Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit Commitment Percentage shall be the percentage obtained by dividing
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(a) such Lender’s Revolving Credit Exposure at such time by (b) the Revolving Credit Exposure of all Lenders at such time.
Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of (i) the Dollar Equivalent of the aggregate principal amount of Revolving Credit Loans of such Lender then outstanding and (ii) such Lender’s Letter of Credit Exposure at such time.
Revolving Credit Facility” shall mean, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
Revolving Credit Lender” shall mean, at any time, any Lender that has a Revolving Credit Commitment or Extended Revolving Credit Commitment at such time (and after the termination of all Revolving Credit Commitments, any Lender that holds any Revolving Credit Exposure and/or Ancillary Outstandings).
Revolving Credit Loans” shall have the meaning provided in Section 2.1(b).
Revolving Credit Maturity Date” shall mean October 20, 2026, or such earlier date on which the Revolving Credit Commitments shall terminate as provided herein (or if such date is not a Business Day, the immediately preceding Business Day).
Revolving Loan” shall mean, collectively or individually as the context may require, any (i) Revolving Credit Loan, (ii) Extended Revolving Credit Loan, (iii) Incremental Revolving Credit Loan, and (iv) Additional Revolving Credit Loan, in each case made pursuant to and in accordance with the terms and conditions of this Agreement.
RFR Interest Day” shall have the meaning provided in the definition of the term Daily Simple RFR.
RFR Loan” means a Loan that bears interest at a rate based on Daily Simple RFR.
S&P” shall mean Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc. (or any successor thereto).
Sale Leaseback” shall mean any arrangement with any Person providing for the leasing by the Parent Borrower or any Restricted Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by the Parent Borrower or such Restricted Subsidiary to such Person in contemplation of such leasing.
Sanctions Laws” shall mean any applicable law governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures administered or enforced by the United States Government (including without limitation, the Office of Foreign Assets Control), the United Nations Security Council, the European Union or the government of the United Kingdom (including, without limitation, Her Majesty’s Treasury).
SEC” shall mean the Securities and Exchange Commission or any successor thereto.
Section 9.1 Financials shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or (b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).
Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between Holdings, the Parent Borrower or any of their
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Restricted Subsidiaries and any Cash Management Bank, other than any Cash Management Agreement which is specified in writing by the Parent Borrower to the Administrative Agent as not constituting a Secured Cash Management Agreement hereunder.
Secured Cash Management Obligations” shall mean Obligations under Secured Cash Management Agreements.
Secured Hedge Agreement” shall mean any Hedge Agreement that is entered into by and between Holdings, the Parent Borrower or any of their Restricted Subsidiaries and any Hedge Bank, other than any Secured Hedge Agreement which is specifically designated in writing by the Parent Borrower and the applicable Hedge Bank to the Administrative Agent as not constituting a Secured Hedge Agreement hereunder.
Secured Hedge Obligations” shall mean Obligations under Secured Hedge Agreements.
Secured Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Secured Debt as of such date of determination, minus the Unrestricted Cash Amount to (ii) Consolidated EBITDA of the Parent Borrower and the Restricted Subsidiaries for the Test Period then last ended, in each case with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in Section 1.12.
Secured Parties” shall mean the Administrative Agent, the Collateral Agent, each Letter of Credit Issuer, each Lender, each Ancillary Lender, each Hedge Bank that is party to any Secured Hedge Agreement, each Cash Management Bank that is party to a Secured Cash Management Agreement and each sub-agent pursuant to Section 12 appointed by the Administrative Agent with respect to matters relating to the Credit Facilities or the Collateral Agent with respect to matters relating to any Security Document.
Secured Ratio Debt” shall have the meaning provided in Section 10.1.
Security Agreement shall mean the Security Agreement entered into by the U.S. Credit Parties party thereto, the other parties party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit D.
Security Documents shall mean, collectively, the Pledge Agreement, the Security Agreement, the Mortgages, and each other security agreement or other instrument or document executed and delivered pursuant to Sections 9.11 or 9.14 or pursuant to any other such Security Documents to secure the Obligations.
Series” shall have the meaning provided in Section 2.14(a).
Shared Incremental Amount” shall have the meaning provided in the definition of Maximum Incremental Facilities Amount.
Significant Subsidiary” shall mean, at any date of determination, (a) any Borrower and (b) any Restricted Subsidiary whose gross revenues (when combined with the gross revenues of such Restricted Subsidiary’s Subsidiaries after eliminating intercompany obligations) for the Test Period most recently ended on or prior to such date were equal to or greater than 10% of the consolidated gross revenues of the Parent Borrower and the Restricted Subsidiaries for such period, determined in accordance with GAAP.
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Similar Business” shall mean any business conducted or proposed to be conducted by Holdings, the Parent Borrower and the Restricted Subsidiaries on the Closing Date or any business that is similar, reasonably related, synergistic, incidental, or ancillary thereto.
SOFR” shall mean a rate per annum equal to the secured overnight financing rate for such Business Day published by as administered by the SOFR Administrator.
SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time)..
Sold Entity or Business shall have the meaning provided in the definition of the term Pro Forma Basis.
Solvent” shall mean, after giving effect to the consummation of the Transactions, (i) the present fair saleable value of the assets of Holdings and its Subsidiaries, on a consolidated basis, is not less than the amount that will be required to pay the probable liability of Holdings and its Subsidiaries, on a consolidated basis, on their debts as they become absolute and matured; (ii) the fair value of the property of Holdings and its Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities (including, without limitation, contingent liabilities) of Holdings and its Subsidiaries, on a consolidated basis; (iii) the capital of Holdings and its Subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as contemplated on the date hereof; and (iv) Holdings and its Subsidiaries, on a consolidated basis, do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debts as they mature 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.
SONIA” means a rate equal to the Sterling Overnight Index Average as administered by the SONIA Administrator.
SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
Specified Existing Revolving Credit Commitment