Form 8-K Booz Allen Hamilton Hold For: Jun 24

June 25, 2021 6:31 AM EDT

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Exhibit 10.1

 

EXECUTION VERSION

 

 

EIGHTH AMENDMENT

 

Dated as of June 24, 2021,

 

relating to the

 

CREDIT AGREEMENT

 

Dated as of July 31, 2012

 

among

 

BOOZ ALLEN HAMILTON INC.
as the Borrower,

 

The Several Lenders from Time to Time Parties Thereto,

and

 

BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent and Issuing Lender

 

 

 

BOFA SECURITIES, INC.,
JPMORGAN CHASE BANK, N.A.,
FIFTH THIRD BANK, NATIONAL ASSOCIATION
SUMITOMO MITSUI BANKING CORPORATION
and
PNC CAPITAL MARKETS LLC
as Joint Lead Arrangers and Joint Bookrunners,

 

JPMORGAN CHASE BANK, N.A.,
FIFTH THIRD BANK, NATIONAL ASSOCIATION
SUMITOMO MITSUI BANKING CORPORATION
and
PNC BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents,

 

and

 

MUFG BANK, LTD.,
TRUIST BANK,
WELLS FARGO BANK, NATIONAL ASSOCIATION
and
TD BANK, N.A.,
as Co-Documentation Agents 

 

 

 

 

 

EIGHTH AMENDMENT

 

EIGHTH AMENDMENT TO CREDIT AGREEMENT, dated as of June 24, 2021 (this “Amendment”), among BOOZ ALLEN HAMILTON INC., a Delaware corporation (the “Borrower”), the Guarantors (as defined in the Credit Agreement and party hereto), the Administrative Agent (as defined below), the Collateral Agent (as defined below), and the Lenders party hereto. Unless otherwise indicated, all capitalized terms used herein and not otherwise defined shall have the respective meanings provided such terms in the Credit Agreement (as amended hereby).

 

W I T N E S S E T H:

 

WHEREAS, the Borrower, the Lenders from time to time party thereto, and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent (in such capacity, the “Collateral Agent”) and Issuing Lender, are parties to a Credit Agreement, dated as of July 31, 2012 (as amended by the First Amendment to Credit Agreement, dated as of August 16, 2013, the Second Amendment to Credit Agreement, dated as of May 7, 2014, the Third Amendment to Credit Agreement, dated as of July 13, 2016, the Fourth Amendment to Credit Agreement, dated as of February 6, 2017, the Fifth Amendment to Credit Agreement, dated as of March 7, 2018, the Sixth Amendment to Credit Agreement, dated as of July 23, 2018, the Seventh Amendment to Credit Agreement, dated as of November 26, 2019, and as otherwise heretofore amended, the “Credit Agreement”);

 

WHEREAS, the Borrower has requested that the Persons set forth on Schedule I hereto (the “Refinancing Revolving Lenders”) provide revolving commitments (the “Refinancing Revolving Commitments”) in an aggregate amount of $500,000,000.00 to the Borrower, and each Refinancing Revolving Lender has agreed to provide a Refinancing Revolving Commitment in an aggregate amount as set forth on Schedule I hereto, in each case subject to the terms and conditions set forth herein;

 

WHEREAS, the Borrower has requested that (a) the Persons set forth on Schedule II hereto (the “New Refinancing Tranche A Term Lenders”) make term loans (the “New Refinancing Tranche A Term Loans”) in an aggregate principal amount of $71,198,403.12 to the Borrower on the Eighth Amendment Effective Date (as defined below) and (b) the Exchanging Tranche A Term Lenders (as defined in Section 2 below) exchange their Existing Tranche A Term Loans (as defined below) for term loans of like aggregate principal amount (the “Exchanged Refinancing Tranche A Term Loans” and, together with the New Refinancing Tranche A Term Loans, the “Refinancing Tranche A Term Loans”), in each case subject to the terms and conditions set forth herein;

 

WHEREAS, pursuant to Section 2.25 of the Credit Agreement, the Borrower has requested that the Persons listed on Schedule III hereto (the “Supplemental Revolving Lenders”) increase their outstanding Revolving Commitments, by an aggregate principal amount of $500,000,000.00, to the Borrower on the Eighth Amendment Effective Date (the “Supplemental Revolving Commitments”), in each case subject to the terms and conditions set forth herein; and

 

 

 

 

WHEREAS, pursuant to Section 10.1 of the Credit Agreement, the Borrower and the Lenders party hereto, constituting no less than the Required Lenders (determined as of the Eighth Amendment Effective Date, immediately prior to and immediately after the Eighth Amendment Effective Time (as defined below)), agree to amend the Credit Agreement as set forth in Section 4 hereof;

 

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

 

SECTION ONE – REFINANCING REVOLVING COMMITMENTS.

 

(a)               Subject to the terms and conditions set forth herein and in the Credit Agreement (as amended hereby), each Refinancing Revolving Lender severally agrees to provide Refinancing Revolving Commitments to the Borrower on the Eighth Amendment Effective Date in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I hereto.

 

(b)               The Revolving Commitments existing immediately prior to the effectiveness hereof (the “Existing Revolving Commitments”) shall be terminated upon the effectiveness of this Amendment, and shall be replaced by the Refinancing Revolving Commitments. Any accrued commitment fees under Section 2.9 of the Credit Agreement and any accrued Letter of Credit fees under the first sentence of Section 3.3(a) of the Credit Agreement shall be paid in full in cash on the Eighth Amendment Effective Date, it being understood and agreed that such fees pursuant to such Sections shall accrue for the account of the Refinancing Revolving Lenders from the Eighth Amendment Effective Date. Any Revolving Loans existing immediately prior to the effectiveness hereof (the “Existing Revolving Loans”) shall be repaid in full in cash on the Eighth Amendment Effective Date, together with all accrued and unpaid interest on, and all other amounts owing in respect of, such Existing Revolving Loans.

 

(c)               Unless the context shall otherwise require, the Refinancing Revolving Lenders shall constitute “Revolving Lenders” and “Lenders”, the Refinancing Revolving Commitments shall constitute “Revolving Commitments” and “Commitments” and revolving loans made pursuant to the Refinancing Revolving Commitments shall constitute “Revolving Loans” and “Loans”, in each case for all purposes of the Credit Agreement (as amended hereby) and the other Loan Documents.

 

(d)               Each Issuing Lender and each Refinancing Revolving Lender hereby agrees that, notwithstanding the termination of the Existing Revolving Commitments, the Letters of Credit outstanding on the Eighth Amendment Effective Date shall remain outstanding, and each Refinancing Revolving Lender further agrees that it shall be bound by the applicable provisions of Section 3 of the Credit Agreement (as amended hereby) in respect thereof.

 

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SECTION TWO – REFINANCING TRANCHE A TERM LOANS.

 

(a)               Subject to the terms and conditions set forth herein and in the Credit Agreement (as amended hereby), each New Refinancing Tranche A Term Lender severally agrees to make New Refinancing Tranche A Term Loans in Dollars to the Borrower on the Eighth Amendment Effective Date in an aggregate principal amount not to exceed the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II hereto. Amounts borrowed under this Section 2(a) and repaid or prepaid may not be reborrowed.

 

(b)               The proceeds of the New Refinancing Tranche A Term Loans shall be used solely to repay in full all Initial Tranche A Term Loans (including all 2018 Delayed Draw Tranche A Term Loans) outstanding under the Credit Agreement immediately prior to the effectiveness hereof (the “Existing Tranche A Term Loans”), other than the Existing Tranche A Term Loans of the Exchanging Tranche A Term Lenders that are exchanged for Exchanged Refinancing Tranche A Term Loans and deemed repaid pursuant to paragraph (d) below, and to pay related accrued and unpaid interest, fees and expenses.

 

(c)               Unless previously terminated, the commitments of the New Refinancing Tranche A Term Lenders pursuant to Section 2(a) shall terminate upon the making of the New Refinancing Tranche A Term Loans on the Eighth Amendment Effective Date.

 

(d)               Each existing Tranche A Term Lender that holds an Existing Tranche A Term Loan (each, an “Existing Tranche A Term Lender”) that executes and delivers a signature page to this Amendment and indicates thereon its election of the “Cashless Settlement Option” (each such Lender, an “Exchanging Tranche A Term Lender” and, together with the New Refinancing Tranche A Term Lenders, the “Refinancing Tranche A Term Lenders”; each Existing Tranche A Term Lender that does not so elect, a “Non-Exchanging Tranche A Term Lender”) severally agrees, on the Eighth Amendment Effective Date and subject to the terms and conditions set forth herein and in the Credit Agreement (as amended hereby), to exchange all (or such lesser amount as the Administrative Agent may allocate to such Lender (any such Existing Tranche A Term Loans of such Lender not allocated for exchange pursuant hereto, its “Non-Allocated Existing Tranche A Term Loans”)) of its Existing Tranche A Term Loans (the aggregate principal amount of Existing Tranche A Term Loans of such Lender so exchanged, its “Exchanged Tranche A Term Loan Amount”) for Exchanged Refinancing Tranche A Term Loans (which Existing Tranche A Term Loans so exchanged shall thereafter be deemed repaid and canceled and no longer be outstanding) in an aggregate principal amount equal to its Exchanged Tranche A Term Loan Amount. All accrued and unpaid interest on, and all other amounts owing in respect of, the Existing Tranche A Term Loans of each Exchanging Tranche A Term Lender that are exchanged pursuant to this paragraph (d) (less the Exchanged Tranche A Term Loan Amount) shall be repaid in full in cash on the Eighth Amendment Effective Date.

 

(e)               The Existing Tranche A Term Loans of each Non-Exchanging Tranche A Term Lender and the Non-Allocated Existing Tranche A Term Loans of each Exchanging Tranche A Term Lender shall be repaid in full in cash on the Eighth Amendment Effective Date, together with all accrued and unpaid interest on, and all other amounts owing in respect of, such Existing Tranche A Term Loans.

 

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(f)                Unless the context shall otherwise require, the New Refinancing Tranche A Term Lenders and the Exchanging Tranche A Term Lenders shall constitute “Tranche A Term Lenders”, “Term Lenders” and “Lenders” and the New Refinancing Tranche A Term Loans and Exchanged Refinancing Tranche A Term Loans shall constitute “Initial Tranche A Term Loans”, “Tranche A Term Loans”, “Term Loans” and “Loans”, in each case for all purposes of the Credit Agreement (as amended hereby) and the other Loan Documents. After giving effect to the transactions contemplated by this Section 2, each Tranche A Term Lender under the Credit Agreement (as amended hereby) shall hold Tranche A Term Loans in an aggregate principal amount equal to the amount set forth opposite such Tranche A Term Lender’s name on Schedule IV(a) hereto.

 

SECTION THREE –SUPPLEMENTAL REVOLVING COMMITMENTS.

 

(a)               Subject to the terms and conditions set forth herein and in the Credit Agreement (as amended hereby), each Supplemental Revolving Lender severally agrees to increase their existing Revolving Commitments to the Borrower on the Eighth Amendment Effective Date in an aggregate principal amount set forth opposite such Supplemental Revolving Lender’s name in the column titled “Supplemental Revolving Commitments Amount” on Schedule III hereto.

 

(b)               Unless the context shall otherwise require, the Refinancing Revolving Lenders shall constitute “Revolving Lenders” and “Lenders”, the Refinancing Revolving Commitments shall constitute “Revolving Commitments” and “Commitments” and revolving loans made pursuant to the Refinancing Revolving Commitments shall constitute “Revolving Loans” and “Loans”, in each case for all purposes of the Credit Agreement (as amended hereby) and the other Loan Documents.

 

(c)               Unless the context shall otherwise require, the Supplemental Revolving Lenders shall constitute “Revolving Lenders” and “Lenders”, the Supplemental Revolving Commitments shall constitute “ Revolving Commitments” and “Commitments” and revolving loans made pursuant to the Supplemental Revolving Commitments shall constitute “Revolving Loans” and “Loans”, in each case for all purposes of the Credit Agreement (as amended hereby) and the other Loan Documents. For the avoidance of doubt, the Revolving Commitments and the Supplemental Revolving Commitments shall constitute a single Tranche under the Credit Agreement (as amended hereby) in an aggregate principal amount of $1,000,000,000.00 as of the Eighth Amendment Effective Date. After giving effect to the transactions contemplated by Section 1 and this Section 3, each Revolving Lender under the Credit Agreement (as amended hereby) shall have a Revolving Commitment equal to the amount set forth opposite such Revolving Lender’s name on Schedule IV(b) hereto.

 

SECTION FOUR – CREDIT AGREEMENT AMENDMENTS. The Credit Agreement is, effective as of the Eighth Amendment Effective Date (as defined below), hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text or stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double underlined text or double-underlined text) as set forth in the Credit Agreement attached as Annex A hereto.

 

5 

 

 

SECTION FIVE – CONDITIONS TO EFFECTIVENESS: This Amendment shall become effective on the date (the “Eighth Amendment Effective Date”) and as of the time (the “Eighth Amendment Effective Time”) when each of the following conditions shall have been satisfied:

 

(a)               Consents; Counterparts. The Loan Parties, the Required Lenders (determined as of the Eighth Amendment Effective Date, immediately prior to and immediately after the Eighth Amendment Effective Time), each New Refinancing Tranche A Term Lender, each Exchanging Tranche A Term Lender, each Refinancing Revolving Lender and each Supplemental Revolving Lender shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent (or its counsel);

 

(b)               No Default; Representations and Warranties. No Default or Event of Default shall exist on the Eighth Amendment Effective Date immediately after giving effect to this Amendment and the borrowing of the Refinancing Tranche A Term Loans and all of the representations and warranties of the Loan Parties contained in the Loan Documents shall be true and correct in all material respects on the Eighth Amendment Effective Date as if made on and as of such date (unless such representation or warranty relates to a specific date, in which case such representation or warranty shall have been true and correct in all material respects as of such specific date);

 

(c)               Tranche A Term Loan Borrowing and Prepayment. (i) The Administrative Agent shall have received from the Borrower a notice of prepayment with respect to the Existing Tranche A Term Loans (other than the Exchanged Existing Tranche A Term Loans) (the “Tranche A Term Loan Prepayment”) and a notice of borrowing with respect to the Refinancing Tranche A Term Loans and (ii) substantially contemporaneously with the other transactions contemplated hereby, the Borrower shall have made the Tranche A Term Loan Prepayment and shall have paid all accrued and unpaid interest on all Existing Tranche A Term Loans and other amounts required to be paid by it in connection therewith;

 

(d)               Revolving Commitment Termination. (i) The Administrative Agent shall have received from the Borrower a notice of termination with respect to the Existing Revolving Commitments and, to the extent any Existing Revolving Loans are outstanding, a notice of prepayment with respect to such Existing Revolving Loans (the “Revolving Loan Prepayment”) and (ii) if applicable, substantially contemporaneously with the other transactions contemplated hereby, the Borrower shall have made the Revolving Loan Prepayment, and shall have paid all accrued and unpaid interest on all Existing Revolving Loans and other amounts required to be paid by it in connection therewith;

 

(e)               Fees. The Borrower shall have paid, or caused to be paid to the Administrative Agent all fees and other amounts due and payable under or in connection with this Amendment, including, without limitation, the fees payable pursuant to Section 12 hereof and all fees and other amounts agreed to between the Borrower and the joint lead arrangers of this Amendment, and, to the extent invoiced in reasonable detail at least three Business Days prior to the Eighth Amendment Effective Date, all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document;

 

6 

 

 

(f)                Legal Opinions; Certificates. The Administrative Agent shall have received legal opinions and closing certificates (consistent with those delivered on the Closing Date pursuant to clauses (f) and (g), respectively, of Section 5.1 of the Credit Agreement, taking into account any changes to such counsel’s form of opinion on account of developments in opinion practice), together with appropriate insertions and attachments (including true and complete copies of resolutions of the board of directors or a duly authorized committee thereof for each of the Loan Parties approving and authorizing the execution, delivery and performance of this Amendment, and the performance of the Credit Agreement (as amended hereby) and a good standing certificate (or the equivalent thereof) for the Borrower and the other Loan Parties from their respective jurisdictions of formation); and

 

(g)               USA PATRIOT Act. The Lenders shall have received from the Borrower and each of the Loan Parties documentation and other information reasonably requested by any Lender no less than 5 Business Days prior to the Eighth Amendment Effective Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.

 

SECTION SIX – REPRESENTATIONS AND WARRANTIES; NO DEFAULTS. In order to induce the Lenders to enter into this Amendment, each of the Loan Parties represents and warrants, on the Eighth Amendment Effective Date, to each of the Lenders and the Administrative Agent that:

 

(a)               the execution, delivery and performance by such Loan Party of this Amendment is within such Loan Party’s corporate or other powers, has been authorized by all necessary corporate or other organizational action, except (other than with respect to the Borrower), to the extent such failure to do so would not reasonably be expected to have a Material Adverse Effect, and has been duly executed and delivered on behalf of the Loan Parties party hereto;

 

(b)               this Amendment and the Credit Agreement (as amended hereby) each constitute a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law) and the implied covenants of good faith and fair dealing;

 

(c)               all of the representations and warranties contained in the Credit Agreement (as amended hereby) and in the other Loan Documents are true and correct in all material respects on the Eighth Amendment Effective Date as if made on and as of such date (unless such representation or warranty relates to a specific date, in which case such representation or warranty were true and correct in all material respects as of such specific date); and

 

7 

 

 

(d)               no Default or Event of Default exists as of the Eighth Amendment Effective Date after giving effect to this Amendment and the borrowing of the Refinancing Tranche A Term Loans made on the Eighth Amendment Effective Date.

 

The Administrative Agent shall give prompt notice in writing to the Borrower of the occurrence of the Eighth Amendment Effective Date and the Eighth Amendment Effective Time. It is understood that such writing may be delivered or furnished by electronic communication, including but not limited to e-mail.

 

SECTION SEVEN – SECURITY. The Loan Parties acknowledge that (a) the Refinancing Tranche A Term Loans and any Revolving Loans or other extensions of credit made pursuant to the Refinancing Revolving Commitments or the Supplemental Revolving Commitments constitute (or will constitute when made) Borrower Obligations (as defined in the Guarantee and Collateral Agreement) and (b) notwithstanding the effectiveness of this Amendment, (i) the Guarantee and Collateral Agreement shall continue to be in full force and effect, (ii) the Guarantor Obligations (as defined in the Guarantee and Collateral Agreement) of each Guarantor are not impaired or affected and (iii) all guarantees made by the Loan Parties pursuant to the Guarantee and Collateral Agreement and all Liens granted by the Loan Parties as security for the Borrower Obligations (including the Refinancing Tranche A Term Loans and any Revolving Loans or other extensions of credit made pursuant to the Refinancing Revolving Commitments or the Supplemental Revolving Commitments) and the Guarantor Obligations pursuant to the Guarantee and Collateral Agreement continue in full force and effect; and, further, confirm and ratify their respective obligations under each of the Loan Documents executed by the Loan Parties, as amended hereby.

 

SECTION EIGHT – WAIVER. Notwithstanding anything contained in Sections 2.25, 10.01(c) and 10.01(d) of the Credit Agreement to the contrary, the parties hereto hereby waive any notice requirement with respect to the Refinancing Tranche A Term Loans, the Refinancing Revolving Commitments and the Supplemental Revolving Commitments and the issuance of Loans with respect thereto.

 

SECTION NINE – SEVERABILITY. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION TEN – Continuing Effect; No Other Waivers or Amendments. Except as expressly set forth herein, this Amendment shall not (a) constitute a substitution or novation, or a payment and reborrowing, or a termination, of the Obligations outstanding under the Credit Agreement (other than with respect to the Existing Revolving Loans, the Existing Revolving Commitments and the Existing Tranche A Term Loans) or instruments guaranteeing or securing the same, which shall remain in full force and effect, except as modified hereby or (b) 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 Loan Parties under the Credit Agreement (as amended hereby), the Guarantee and Collateral Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement (as amended hereby), the Guarantee and Collateral Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan 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 Credit Agreement (as amended hereby), the Guarantee and Collateral Agreement or any other Loan Document in similar or different circumstances. After the Eighth Amendment Effective Date, any reference in any Loan Document to the Credit Agreement shall mean the Credit Agreement (as amended hereby). This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement (as amended hereby) and the other Loan Documents.

 

8 

 

 

SECTION ELEVEN – COUNTERPARTS. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Amendment by facsimile or electronic (e.g., a “pdf”) transmission shall be effective as delivery of a manually executed counterpart hereof. Any signature to this Amendment may be delivered by any electronic signature complying with the U.S. Federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law.

 

SECTION TWELVE – PAYMENT OF FEES AND EXPENSES. The Borrower agrees (a) to pay to each Refinancing Revolving Lender, New Refinancing Tranche A Term Lender, Exchanging Tranche A Term Lender and Supplemental Revolving Lender the fees agreed among the Borrower, the joint lead arrangers of the Amendment and such Lender and (b) to pay or reimburse the Administrative Agent for all of its reasonable and documented out-of-pocket costs and expenses incurred in connection with this Amendment including, without limitation, the reasonable fees and disbursements and other charges of Cravath, Swaine & Moore LLP, counsel to the Administrative Agent.

 

SECTION THIRTEEN – GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT THE SAME ARE NOT MANDATORILY APPLICABLE BY STATUTE AND THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. The provisions of Sections 10.12 and 10.17 of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.

 

SECTION FOURTEEN – TAX MATTERS. For purposes of determining withholding Taxes imposed under FATCA, from and after the Eighth Amendment Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

 

9 

 

 

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

 

  BOOZ ALLEN HAMILTON INC.
   
  By: /s/ Lloyd W. Howell, Jr.
  Name: Lloyd W. Howell, Jr.
  Title: Executive Vice President, Chief Financial Officer and Treasurer
   
  BOOZ ALLEN HAMILTON INVESTOR CORPORATION
   
  By: /s/ Lloyd W. Howell, Jr.
  Name: Lloyd W. Howell, Jr.
  Title: Executive Vice President, Chief Financial Officer and Treasurer
   
  EGOV HOLDINGS, INC.
   
  By: /s/ Laura S. Adams
  Name:  Laura S. Adams
  Title: Treasurer
   
  AQUILENT, INC.
   
  By: /s/ Laura S. Adams
  Name: Laura S. Adams
  Title: Treasurer

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent, Issuing Lender, Refinancing Revolving Lender, Exchanging Tranche A Term Lender, New Refinancing Tranche A Term Lender and Supplemental Revolving Lender

     
  By:

/s/ Matthew Curtin

    Name:  Matthew Curtin
    Title:    Managing Director

 

[Signature Page to Eighth Amendment to Credit Agreement - Booz Allen Hamilton Inc.]

  

 

 

 

I. Election (Check Any That Apply):

 

A.þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Bank of America, N.A.

 

by /s/ Puneet Lakhotia  
  Name: Puneet Lakhotia  
  Title:   Director  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY): By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: JPMORGAN CHASE BANK, N.A.

 

by /s/ Sarah Gang  
  Name: Sarah Gang  
  Title:   Executive Director  
     
For any institution requiring a second signature line:
   
by    
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Fifth Third Bank, National Association

 

by /s/ Michael S. Barnett  
  Name: Michael S. Barnett  
  Title:   Senior Vice President  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

I. Election (Check Any That Apply):

 

A. þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
  By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.
 
B. þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
  By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.
 
C. þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
  By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.
 
D. þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
  By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

  

II. Signature:

 

Name of Institution: Sumitomo Mitsui Banking Corporation

 

  by /s/ Jun Ashley  
    Name: Jun Ashley  
    Title:   Director  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A. þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
  By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.
 
B. þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
  By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.
 
C. þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
  By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.
 
D. þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
  By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

  

II. Signature:

 

Name of Institution: PNC Bank, National Association

 

  by

/s/ Eric H. Williams

 
    Name: Eric H. Williams  
    Title:   Senior Vice President  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A. þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
  By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.
 
B. þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
  By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.
 
C. þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
  By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.
 
D. ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
  By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: MUFG Bank, Ltd.

 

  by

/s/ George Stoecklein

 
    Name: George Stoecklein  
    Title:   Managing Director  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A. þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
  By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.
 
B. þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
  By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.
 
C. þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
  By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.
 
D. þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
  By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Truist Bank

 

  by

/s/ Anika Kirs

 
    Name: Anika Kirs  
    Title:   Director  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A. þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
  By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.
 
B. þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
  By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.
 
C. þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
  By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.
 
D. þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
  By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

  

II. Signature:

 

Name of Institution: Wells Fargo Bank, National Association

 

  by

/s/ Greg Strauss

 
    Name: Greg Strauss  
    Title:   Managing Director  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

I. Election (Check Any That Apply):

 

A.   þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: TD Bank, N.A.

 

by 

/s/ Bernadette Collins

 
  Name: Bernadette Collins  
  Title:   Senior Vice President  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Capital One National Association

 

by

/s/ Joseph C. Costa

 
  Name: Joseph C. Costa  
  Title:  Managing Director  
     
For any institution requiring a second signature line:  
   
by

N/A

 
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: U.S. Bank National Association

 

By

/s/ Ken Gorski

 
  Name: Ken Gorski  
  Title:  Vice Ptesident  
     
For any institution requiring a second signature line:  
   
By     
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.  ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Industrial and Commercial Bank of China Ltd., New York Branch

 

by

/s/ Tony Huang

 
  Name: Tony Huang  
  Title:  Director  
     
For any institution requiring a second signature line:  
   
by 

/s/ Yuanyuan Peng

 
  Name: Yuanyuan Peng  
  Title:  Executive Director  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: People’s United Bank, N.A.

 

by

/s/ Donna J. Emhart

 
  Name: Donna J. Emhart  
  Title:  Senior Vice President  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

I. Election (Check Any That Apply):

 

A.    þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    ¨ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: GOLDMAN SACHS BANK USA

 

by /s/ Ryan Durkin  
  Name: Ryan Durkin  
  Title:   Authorized Signatory  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: STATE BANK OF INDIA, LOS ANGELES AGENCY

 

by /s/ KRISHNA MOHAN GINJUPALLI  
  Name: KRISHNA MOHAN GINJUPALLI  
  Title: VICE PRESIDENT AND HEAD (CREDIT MANAGEMENT CELL)  
   
For any institution requiring a second signature line:  
 
by    
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: THE HUNTINGTON NATIONAL BANK

 

by /s/ Phil Andresen  
  Name: Phil Andresen  
  Title:   Vice President  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.  þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Trustmark National Bank

 

by /s/ Louise Barden  
  Name: Louise Barden  
  Title:   President - Memphis  
   
For any institution requiring a second signature line:
 
by    
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.  ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: MANUFACTURERS AND TRADERS TRUST COMPANY

 

by /s/ R. Mark Swaak  
  Name: R. Mark Swaak  
  Title:   Vice President  
   
For any institution requiring a second signature line:
 
by    
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

I.     Election (Check Any That Apply):

 

A.¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
 By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.
  
B.þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
 By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.
  
C.¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
 By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment. 
  
D.þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
 By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Land Bank of Taiwan, Los Angeles Branch

 

  by

/s/ Chien-Ching Li

 
    Name: Chien-Ching Li  
    Title: VP & General Manager  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
 By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
 By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
 By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
 By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Chang Hwa Commercial Bank, Ltd.,
Los Angeles Branch

 

  by

/s/ Wan-Chin Chang

 
    Name: Wan-Chin Chang  
    Title: VP & General Manager  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply): 

A.¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
 By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.
  
B.¨ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
 By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.
  
C.þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
 By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.
  
D.þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
 By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.  

 

II. Signature:

 

Name of Institution: United Bank

 

  by /s/ Edward J. Goedecke  
    Name: Edward J. Goedecke  
    Title: Senior Vice President  

 

For any institution requiring a second signature line:

 

       
  by Name:  
    Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Crédit Industriel et Commercial, New York Branch as Lender

 

  by /s/ Clifford Abramsky  
    Name: Clifford Abramsky  
    Title:    Managing Director  
       
  For any institution requiring a second signature line:  
     
  by /s/ Garry Weiss  
    Name: Garry Weiss  
    Title: Managing Director  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Hua Nan Commercial Bank., Ltd., New York Agency

 

  by /s/ I-Chin Fang  
    Name: I-Chin Fang  
    Title: Vice President & General Manager  
       
  For any institution requiring a second signature line:  
     
  by    
    Name:  
    Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.    ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

 

II. Signature:

 

Name of Institution: First Horizon Bank

 

  by

/s/ Sharon Shipley

 
    Name: Sharon Shipley  
    Title:   Senior Vice President  
       
  For any institution requiring a second signature line:  
     
  by  
    Name:  
    Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

 

II. Signature:

 

Name of Institution: Banco de Credito e Inversiones, SA – Miami Branch

 

  by

/s/ Ana C. Escudero

 
    Name: Ana C. Escudero  
    Title:   MSVP, Head of Credit & Underwriting  
     
  For any institution requiring a second signature line:  
     
  by

/s/ Juan Segundo

 
    Name: Juan Segundo  
    Title:   MSVP, Head of Corporate Banking  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.    þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

 

II. Signature:

 

Name of Institution: MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD., CHICAGO BRANCH

 

  by /s/ Hung-Tse Chen  
    Name: Hung-Tse Chen  
    Title:   VP & GM  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   þ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.    þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

 

II. Signature:

 

Name of Institution: American Savings Bank, F.S.B.

 

  by

/s/ Cyd Miyashiro

 
    Name: Cyd Miyashiro  
    Title:   First Vice President  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.    þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.    ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

 

II. Signature:

 

Name of Institution: RAYMOND JAMES BANK

 

  by

/s/ Kathy Bennett

 
    Name: Kathy Bennett  
    Title:   SVP  
       
  For any institution requiring a second signature line:  
     
  by  
    Name:  
    Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   ¨SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Taiwan Cooperative Bank, Los Angeles Branch

 

by

/s/ Ping-Yu Wang

 
  Name: Ping-Yu Wang  
  Title:  V.G.M.  
     
For any institution requiring a second signature line:  
   
by  
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: STIFEL BANK & TRUST

 

by

/s/ Daniel P. McDonald

 
  Name: Daniel P. McDonald  
  Title:   Vice President  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: BANCO DE SABADELL, S.A., MIAMI BRANCH

 

by

/s/ Ignacio Alcaraz

 
  Name: Ignacio Alcaraz  
  Title:   Head of Structured Finance Americas  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: MidFirst Bank

 

by

/s/ Sherlyn Nelson

 
  Name: Sherlyn Nelson  
  Title:   Director  
     
For any institution requiring a second signature line:  
   
by  
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   þ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: First Commercial Bank, Ltd., A Republic of China Bank Acting Through Its Los Angeles Branch

 

by

/s/ Ching-Fang Liao

 
  Name: Ching-Fang Liao  
  Title:   VP & GM  
For any institution requiring a second signature line:  
by  
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

I. Election (Check Any That Apply):

 

A.   ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   þ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Taiwan Business Bank, New York Branch

 

by /s/ Feng Chang, Wu  
  Name: Feng Chang, Wu  
  Title:   General Manager  
   
For any institution requiring a second signature line:
 
by    
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

I. Election (Check Any That Apply):

 

A.  ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.  ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.  ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: FIRST MIDWEST BANK

 

by /s/ Michael Trunck  
  Name: Michael Trunck  
  Title:   Vice President  
     
For any institution requiring a second signature line:
 
by    
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

SCHEDULE IV(b)

 

I. Election (Check Any That Apply):

 

A.  ¨ CONSENT TO AMENDMENT AND PROVISION OF REFINANCING REVOLVING COMMITMENTS (REFINANCING REVOLVING LENDERS ONLY):
By checking this box, the undersigned Refinancing Revolving Lender hereby consents to the Amendment and agrees to provide Refinancing Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Refinancing Revolving Lender’s name on Schedule I to the Amendment.

 

B.   þ CONSENT AND CASHLESS SETTLEMENT OPTION (EXCHANGING TRANCHE A TERM LENDERS ONLY):
By checking this box, the undersigned Exchanging Tranche A Term Lender hereby consents to the Amendment and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of its Existing Tranche A Term Loans (or such lesser amount allocated to such Exchanging Tranche A Term Lender by the Administrative Agent) for Exchanged Refinancing Tranche A Term Loans in an equal principal amount.

 

C.   ¨ SUPPLEMENTAL REVOLVING LENDERS ONLY:
By checking this box, the undersigned Supplemental Revolving Lender hereby agrees to provide Supplemental Revolving Commitments in an aggregate amount equal to the amount set forth opposite such Supplemental Revolving Lender’s name on Schedule III to the Amendment.

 

D.   ¨ NEW REFINANCING TRANCHE A TERM LENDERS ONLY:
By checking this box, the undersigned New Refinancing Tranche A Term Lender hereby agrees to provide New Refinancing Tranche A Term Loans in an aggregate amount equal to the amount set forth opposite such New Refinancing Tranche A Term Lender’s name on Schedule II to the Amendment, subject to the terms and conditions set forth in the Amendment.

 

II. Signature:

 

Name of Institution: Central Pacific Bank

 

by /s/ Ichiro Sekimitsu  
  Name: Ichiro Sekimitsu  
  Title:   Senior Vice President  
     
For any institution requiring a second signature line:
 
by    
  Name:  
  Title:  

 

[Booz Allen Hamilton Inc. – Eighth Amendment to Credit Agreement]

 

 

 

 

 

Annex A

 

CREDIT AGREEMENT AMENDMENTS

 

 

 

 

 

EXECUTION VERSIONANNEX A

 

(REFLECTS FIRST AMENDMENT DATED AS OF AUGUST 16, 2013, SECOND AMENDMENT DATED AS OF MAY 7, 2014, THIRD AMENDMENT DATED AS OF JULY 13, 2016, FOURTH AMENDMENT DATED AS OF FEBRUARY 6, 2017, FIFTH AMENDMENT DATED AS OF MARCH 7, 2018, SIXTH AMENDMENT DATED AS OF JULY 23, 2018 AND, SEVENTH AMENDMENT DATED AS OF NOVEMBER 26, 2019 AND EIGHTH AMENDMENT DATED AS OF JUNE 24, 2021)

 

 

 

$2,250,000,000

 

CREDIT AGREEMENT

 

among

 

BOOZ ALLEN HAMILTON INC.
as the Borrower,

 

The Several Lenders from Time to Time Parties Hereto,

 

BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent and Issuing Lender,

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

 

and

 

CREDIT SUISSE SECURITIES (USA) LLC,
as Joint Lead Arrangers,

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

 

CREDIT SUISSE SECURITIES (USA) LLC,

 

BARCLAYS BANK PLC,

 

CITIGROUP GLOBAL MARKETS INC.,

 

HSBC SECURITIES (USA) INC.,

 

J.P. MORGAN SECURITIES LLC,

 

MORGAN STANLEY SENIOR FUNDING, INC.

 

and

 

SUMITOMO MITSUI BANKING CORPORATION

 

as Joint Bookrunners,

 

CREDIT SUISSE SECURITIES (USA) LLC, 

 

as Syndication Agent

 

and

 

BARCLAYS BANK PLC,

 

CITIGROUP GLOBAL MARKETS INC.,

 

HSBC SECURITIES (USA) INC.,

 

J.P. MORGAN SECURITIES LLC,

 

MORGAN STANLEY SENIOR FUNDING, INC.,

 

SUMITOMO MITSUI BANKING CORPORATION

 

and

 

THE BANK OF TOKYO-MITSUBISHI UFJ LTD (NEW YORK),

 

as Co-Documentation Agents

 

Dated as of July 31, 2012

 

 

 

 

 

 

TABLE OF CONTENTS

 

Page

 

SECTION 1. DEFINITIONS 1

 

1.1Defined Terms 1
1.2Other Definitional Provisions 4447
1.3Pro Forma Calculations 4547
1.4Exchange Rates; Currency Equivalents 4749
1.5Letter of Credit Amounts 4850
1.6Eurocurrency Base Rate Discontinuation 4850

 

SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 4951

 

  2.1 Term Commitments 4951
  2.2 Procedure for Initial Term Loan Borrowing 4951
  2.3 Repayment of Term Loans 5052
  2.4 Revolving Commitments 5052
  2.5 Procedure for Revolving Loan Borrowing 5052
  2.6 [Reserved]51Eurocurrency Base Rate Discontinuation After Eighth Amendment Effective Date 53
  2.7 Defaulting Lenders 5157
  2.8 Repayment of Loans 5258
  2.9 Commitment Fees, etc. 5359
  2.10 Termination or Reduction of Revolving Commitments 5360
  2.11 Optional Prepayments 5460
  2.12 Mandatory Prepayments 5561
  2.13 Conversion and Continuation Options 5763
  2.14 Minimum Amounts and Maximum Number of Eurocurrency Tranches 5864
  2.15 Interest Rates and Payment Dates 5864
  2.16 Computation of Interest and Fees 5965
  2.17 Inability to Determine Interest Rate 5965
  2.18 Pro Rata Treatment and Payments 6066
  2.19 Requirements of Law 6268
  2.20 Taxes 63 69
  2.21 Indemnity 6672
  2.22 Illegality 6672
  2.23 Change of Lending Office 6672
  2.24 Replacement of Lenders 6672
  2.25 Incremental Loans 6773
  2.26 Extension of Term Loans and Revolving Commitments 7076
  2.27 Permitted Debt Exchanges 7379

 

SECTION 3. LETTERS OF CREDIT 7480

 

3.1L/C Commitment 7480
3.2Procedure for Issuance of Letter of Credit 7581
3.3Fees and Other Charges 7581
3.4L/C Participations 7682
3.5Reimbursement Obligation of the Borrower 7884
3.6Obligations Absolute 7884
3.7Letter of Credit Payments 7984
3.8Applications 7985
3.9Applicability of ISP and UCP 7985

 

i 

 

 

SECTION 4. REPRESENTATIONS AND WARRANTIES 7985

 

4.1Financial Condition 7985
4.2No Change 7985
4.3Existence; Compliance with Law 7985
4.4Corporate Power; Authorization; Enforceable Obligations 8086
4.5No Legal Bar 8086
4.6No Material Litigation 8186
4.7No Default 8186
4.8Ownership of Property; Liens 8187
4.9Intellectual Property 8187
4.10Taxes 8187
4.11Federal Regulations 8287
4.12ERISA 8287
4.13Investment Company Act 8288
4.14Subsidiaries 8388
4.15Environmental Matters 8388
4.16Accuracy of Information, etc. 8388
4.17Security Documents 8389
4.18Solvency 8490
4.19Anti-Terrorism 8490

 

SECTION 5. CONDITIONS PRECEDENT 8490

 

5.1Conditions to Initial Extension of Credit 8490
5.2Conditions to Each Revolving Loan Extension of Credit After Closing Date 8691
5.3Conditions to Each Extension of Credit Under the 2018 Delayed Draw Tranche A Term Commitments After the Sixth Amendment Effective Date 8692

 

SECTION 6. AFFIRMATIVE COVENANTS 8792

 

6.1Financial Statements 8793
6.2Certificates; Other Information 8894
6.3Payment of Taxes 8995
6.4Conduct of Business and Maintenance of Existence, etc.; Compliance 9095
6.5Maintenance of Property; Insurance 9095
6.6Inspection of Property; Books and Records; Discussions 9096
6.7Notices 9196
6.8Additional Collateral, etc. 9197
6.9Use of Proceeds 9499
6.10Post Closing 94100
6.11Changes in Jurisdictions of Organization; Name 94100

 

ii 

 

 

SECTION 7. NEGATIVE COVENANTS 95100

 

7.1Financial Covenants 95100
7.2Indebtedness 95101
7.3Liens 99105
7.4Fundamental Changes 102108
7.5Dispositions of Property 103108
7.6Restricted Payments 105110
7.7Investments 108113
7.8[RESERVED] 111116
7.9Transactions with Affiliates 111116
7.10[RESERVED] 111117
7.11Changes in Fiscal Periods 112117
7.12Negative Pledge Clauses 112117
7.13Clauses Restricting Subsidiary Distributions 113119
7.14Lines of Business 114119
7.15Limitation on Hedge Agreements 114119

 

SECTION 8. EVENTS OF DEFAULT 114120

 

8.1Events of Default 114120

 

SECTION 9. THE AGENTS 117123

 

9.1Appointment 117123
9.2Delegation of Duties 118123
9.3Exculpatory Provisions 118123
9.4Reliance by the Agents 118124
9.5Notice of Default 119124
9.6Non-Reliance on Agents and Other Lenders 119124
9.7Indemnification 119125
9.8Agent in Its Individual Capacity 120125
9.9Successor Agents 120125
9.10Authorization to Release Liens and Guarantees 121126
9.11Agents May File Proofs of Claim 121126
9.12Specified Hedge Agreements, Specified Foreign Currency L/C Agreements and Cash Management Obligations 122127
9.13Joint Bookrunners and Co-Documentation Agents 122127
9.14Certain ERISA Matters 122127
9.15Recovery of Erroneous Payments 128

 

iii 

 

 

SECTION 10. MISCELLANEOUS 123129

 

10.1Amendments and Waivers 123129
10.2Notices; Electronic Communications 125131
10.3No Waiver; Cumulative Remedies 128134
10.4Survival of Representations and Warranties 128134
10.5Payment of Expenses; Indemnification 129134
10.6Successors and Assigns; Participations and Assignments 130135
10.7Adjustments; Set off 134139
10.8Counterparts 134140
10.9Severability 134140
10.10Integration 134140
10.11GOVERNING LAW 134140
10.12Submission to Jurisdiction; Waivers 135140
10.13Acknowledgments 135141
10.14Confidentiality 136142
10.15Release of Collateral and Guarantee Obligations; Subordination of Liens 137143
10.16Accounting Changes 138144
10.17WAIVERS OF JURY TRIAL 139144
10.18USA PATRIOT ACT 139145
10.19Effect of Certain Inaccuracies 139145
10.20Interest Rate Limitation 139145
10.21Payments Set Aside 140145
10.22Electronic Execution of Assignments and Certain Other Documents 140146
10.23Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions 140146
10.24Acknowledgement Regarding Any Supported QFCs 147

 

iv 

 

 

SCHEDULES:

 

1.1A Excluded Subsidiaries
1.1B Specified Foreign Currency L/C Agreements
1.1C Specified Hedge Agreements
1.1D Existing Letters of Credit
2.1 Commitments
4.3 Existence; Compliance with Law
4.4 Consents, Authorizations, Filings and Notices
4.6 Litigation
4.8A Excepted Property
4.8B Owned Real Property
4.14 Subsidiaries
4.17 UCC Filing Jurisdictions
6.10 Post Closing
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.7 Existing Investments
7.12 Existing Negative Pledge Clauses

 

EXHIBITS:

 

A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Assumption
E Form of Intercreditor Agreement
F Form of Exemption Certificate
G Form of Solvency Certificate
H Form of Joinder Agreement
I Form of Prepayment Option Notice
J-1 Form of Tranche A Term Loan Note
J-2 Form of Tranche B Term Loan Note
J-3 Form of Revolving Note
K Form of Consolidating Schedule
L-1 Form of Increase Supplement
L-2 Form of Lender Joinder Agreement
M Form of Borrowing Notice

 

v 

 

 

CREDIT AGREEMENT, dated as of July 31, 2012, among BOOZ ALLEN HAMILTON INC., a Delaware corporation (the “Company” or the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “Lenders”), BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent and Issuing Lender, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and CREDIT SUISSE SECURITIES (USA) LLC, as joint lead arrangers, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC, BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS INC., HSBC SECURITIES (USA) INC., J.P. MORGAN SECURITIES LLC, MORGAN STANLEY SENIOR FUNDING, INC. and SUMITOMO MITSUI BANKING CORPORATION, as joint bookrunners, CREDIT SUISSE SECURITIES (USA) LLC, as syndication agent and BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS INC., HSBC SECURITIES (USA) INC., J.P. MORGAN SECURITIES LLC, MORGAN STANLEY SENIOR FUNDING, INC., SUMITOMO MITSUI BANKING CORPORATION and THE BANK OF TOKYO-MITSUBISHI UFJ LTD (NEW YORK), as co-documentation agents.

 

The parties hereto hereby agree as follows:

 

SECTION 1.   DEFINITIONS

 

1.1               Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

 

2008 Transaction Documents”: the Merger Documents and the “Loan Documents” (as defined in the Existing Credit Agreement).

 

2008 Transactions”: the “2008 Transactions” (as defined in the Existing Credit Agreement).

 

2012 Transactions”: (a) the transactions to occur pursuant to this Agreement and the other Loan Documents, including the making of the Revolving Commitments and the borrowing of the Initial Term Loans, (b) the Refinancing and (c) the Dividend.

 

2014 Supplemental Term Loans”: has the meaning assigned to such term in the Second Amendment.

 

2016 Supplemental Tranche A Term Loans”: has the meaning assigned to such term in the Third Amendment.

 

2016 Transactions”: the transactions to occur pursuant to the Third Amendment.

 

2018 Delayed Draw Tranche A Commitment Percentage”: as to any 2018 Delayed Draw Tranche A Term Lender at any time, in respect of 2018 Delayed Draw Tranche A Term Commitments, the percentage which such Lender’s unused 2018 Delayed Draw Tranche A Term Commitments (if any) then outstanding constitute of the aggregate unused Delayed Draw Tranche A Term Commitments (if any) of all 2018 Delayed Draw Tranche A Term Lenders then outstanding.

 

2018 Delayed Draw Tranche A Term Commitments”: as to any 2018 Delayed Draw Tranche A Term Lender, the obligations of such 2018 Delayed Draw Tranche A Term Lender to make 2018 Delayed Draw Tranche A Term Loans to the Borrower in an aggregate principal amount not to exceed the amount set forth opposite such 2018 Delayed Draw Tranche A Term Lender’s name on Schedule III to the Sixth Amendment, as the same may be changed from time to time pursuant to the terms hereof (including, without limitation, pursuant to the terms of the Sixth Amendment). The aggregate principal amount of the 2018 Delayed Draw Tranche A Term Commitments as of the Sixth Amendment Effective Date is $400,000,000. Unless the context shall otherwise require, the 2018 Delayed Draw Tranche A Term Commitments shall constitute “Supplemental Term Loan Commitments”, “New Loan Commitments” and “Commitments” for all purposes of this Agreement.

 

1

 

 

2018 Delayed Draw Tranche A Term Lender”: as defined in the Sixth Amendment.

 

2018 Delayed Draw Tranche A Term Loans”: as defined in the Sixth Amendment.

 

2018 Delayed Draw Tranche A Term Loan Availability Period”: the period from and including the Sixth Amendment Effective Date to and including April 23, 2019 or such earlier date as the 2018 Delayed Draw Tranche A Term Commitments shall be terminated by the Borrower or be reduced to $0.

 

ABR”: for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) the Eurocurrency Rate for a three-month interest period beginning on such day (or if such day is not a Business Day, on the immediately preceding Business Day) plus 1%; provided that, for the avoidance of doubt, the Eurocurrency Rate for any day shall be based on the rate appearing on the Screen two Business Days prior to such day at approximately 11 A.M., London time, as the Eurocurrency Rate for deposits denominated with a three month interest-period; provided, further that if such rate shall be less than zero, such rate shall be deemed to be zero. For purposes hereof: “Prime Rate” means the prime commercial lending rate of the Administrative Agent as established from time to time in its principal U.S. office, as in effect from time to time. Any change in the ABR due to a change in the Eurocurrency Rate, the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Eurocurrency Rate, the Prime Rate or the Federal Funds Effective Rate, respectively.

 

ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.

 

Accounting Changes”: as defined in Section 10.16.

 

Acquisition”: as defined in the definition of “Permitted Acquisition.”

 

Additional Obligations”: senior or subordinated Indebtedness (which Indebtedness may be (x) secured by the Collateral on a junior basis, (y) unsecured or (z) in the case of customary bridge financings or debt securities, secured by the Collateral on a pari passu basis), including customary bridge financings, in each case issued or incurred by the Borrower or a Guarantor, the terms of which Indebtedness do not provide for a maturity date or weighted average life to maturity earlier than the Latest Maturity Date or shorter than the weighted average life to maturity of the Latest Maturing Tranche A Term Loans (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Latest Maturity Date or the weighted average life to maturity of the Latest Maturing Tranche A Term Loans, as applicable); provided that (a) such Indebtedness shall not be secured by any Lien on any asset of any Loan Party that does not also secure the Obligations, or be guaranteed by any Person other than the Guarantors, and (b) if secured by Collateral, such Indebtedness (and all related Obligations) shall be subject to the terms of an Intercreditor Agreement or an Other Intercreditor Agreement.

 

2

 

 

Administrative Agent”: Bank of America, N.A., as the administrative agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors and permitted assigns in such capacity in accordance with Section 9.9.

 

“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Affiliate”: as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, in either case whether by contract or otherwise.

 

Agents”: the collective reference to the Collateral Agent and the Administrative Agent, and solely for purposes of Sections 10.13 and 10.14, the Lead Arrangers, Joint Bookrunners, Co-Syndication AgentAgents and Co-Documentation Agents.

 

Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans and unused Commitments in respect thereof, if any, then in effect and (ii) the aggregate amount of such Lender’s Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.

 

Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the total Aggregate Exposures of all Lenders at such time.

 

Agreed Purposes”: as defined in Section 10.14.

 

Agreement”: this Credit Agreement, as amended, supplemented, waived or otherwise modified from time to time.

 

Annual Operating Budget”: as defined in Section 6.2(c).

 

Applicable Margin” or “Applicable Commitment Fee Rate”: for any day, with respect to (i) the Loans under the Revolving Facility and the Tranche A Term Loan Facility, and the commitment fee payable hereunder, the applicable rate per annum determined pursuant to the Pricing Grid and (ii) the Loans under the Tranche B Term Loan Facility, in the case of the Applicable Margin, 0.75% with respect to Initial Tranche B Term Loans that are ABR Loans and 1.75% with respect to Initial Tranche B Term Loans that are Eurocurrency Loans; provided that from the SixthEighth Amendment Effective Date until the delivery of financial statements pursuant to Section 6.1 with respect to the first full fiscal quarter ending after the SixthEighth Amendment Effective Date (a) the Applicable Margin shall be 0.50% with respect to Initial Tranche A Term Loans and Revolving Loans that are ABR Loans and 1.50% with respect to Initial Tranche A Term Loans and Revolving Loans that are Eurocurrency Loans and (b) the Applicable Commitment Fee Rate shall be 0.25%, and, thereafter, the Applicable Margin and Applicable Commitment Fee Rate with respect to Initial Tranche A Term Loans, 2018 Delayed Draw Tranche A Term Commitments, Revolving Loans and Revolving Commitments shall be determined in accordance with the Pricing Grid, in each case, based on the most recently delivered financial statements delivered pursuant to Section 6.1.

 

Applicable Period”: as defined in Section 10.19.

 

3

 

 

Application”: an application, in such form as the relevant Issuing Lender may specify from time to time, requesting such Issuing Lender to open a Letter of Credit.

 

Approved Fund”: as defined in Section 10.6(b).

 

Asset Sale”: any Disposition of Property or series of related Dispositions of Property by the Borrower or any of its Restricted Subsidiaries not in the ordinary course of business (a) under Section 7.5(e) or (p) or (b) not otherwise permitted under Section 7.5, in each case, which yields Net Cash Proceeds (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at Fair Market Value in the case of other non-cash proceeds) in excess of $15,000,00081,000,000.

 

Assignee”: as defined in Section 10.6(b).

 

Assignment and Assumption”: an Assignment and Assumption, substantially in the form of Exhibit D.

 

Available Amount”: as at any date, the sum of, without duplication:

 

(a) $125,000,000;

 

(b) the aggregate cumulative amount, not less than zero, of 100% of Excess Cash Flow minus the Excess Cash Flow Application Amount for each fiscal year beginning with the fiscal year ending March 31, 2014;

 

(c) the Net Cash Proceeds received after the Closing Date and on or prior to such date from any Equity Issuance by, or capital contribution to, the Borrower (which is not Disqualified Capital Stock);

 

(d) the aggregate amount of proceeds received after the Closing Date and on or prior to such date that (i) would have constituted Net Cash Proceeds pursuant to clause (a) of the definition of “Net Cash Proceeds” except for the operation of any of (A) the Dollar threshold set forth in the definition of “Asset Sale” and (B) the Dollar threshold set forth in the definition of “Recovery Event” or (ii) constitutes Declined Proceeds;

 

(e) the aggregate principal amount of any Indebtedness of the Borrower or any Restricted Subsidiary issued after the Closing Date (other than Indebtedness issued to a Restricted Subsidiary), which has been extinguished after being converted into or exchanged for Capital Stock in Investor or any Parent Company;

 

(f) the amount received by the Borrower or any Restricted Subsidiary in cash (and the Fair Market Value of Property other than cash received by the Borrower or any Restricted Subsidiary) after the Closing Date from any dividend or other distribution by an Unrestricted Subsidiary;

 

(g) in the event any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Borrower or any Restricted Subsidiary, the Fair Market Value of the Investments of the Borrower or any Restricted Subsidiary in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable);

 

(h) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in cash, Cash Equivalents and Permitted Liquid Investments by the Borrower or any Restricted Subsidiary in respect of any Investments made pursuant to Section 7.7(f)(ii)(B), Section 7.7(h)(B) or Section 7.7(v)(ii); and

 

4

 

 

(i) the aggregate amount actually received in cash, Cash Equivalents or Permitted Liquid Investments by the Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any joint venture that is not a Subsidiary or in any Unrestricted Subsidiary, in each case, to the extent of the Investment in such joint venture or Unrestricted Subsidiary;

 

minus, the sum of:

 

(a) the amount of Restricted Payments made after the Closing Date pursuant to Section 7.6(b)(i); and

 

(b) the amount of any Investments made after the Closing Date pursuant to Section 7.7(f)(ii)(B), Section 7.7(h)(B) or Section 7.7(v)(ii); excluding, in the case of the immediately preceding clause (a) and clause (b), Restricted Payments and Investments made prior to the Second Amendment Effective Date in an aggregate amount not exceeding $100,000,000.

 

Available Revolving Commitment”: as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect (including any New Loan Commitments which are Revolving Commitments) over (b) such Lender’s Revolving Extensions of Credit then outstanding.

 

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

 

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

 

Benefited Lender”: as defined in Section 10.7(a).

 

“BHC Act Affiliate”: as to any party, an “affiliate’ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

Board of Directors”: (a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board; (b) with respect to a partnership, the Board of Directors of the general partner of the partnership, or any committee thereof duly authorized to act on behalf of such board or the board or committee of any Person serving a similar function; (c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof or any Person or Persons serving a similar function; and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

 

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Borrower”: as defined in the preamble hereto.

 

Borrower Consolidated Group”: as defined in Section 7.6(c).

 

Borrower Materials”: as defined in Section 10.2(c).

 

Borrowing Date”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.

 

Borrowing Notice”: a notice of borrowing delivered pursuant to Section 2.5 or the Sixth Amendment, as applicable, substantially in the form of Exhibit M or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

Business”: the business activities and operations of the Borrower and/or its Subsidiaries on the Closing Date.

 

Business Day”: a day (a) other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close and (b) with respect to notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Loans, such day is also a day for trading by and between banks in Dollar deposits in the London interbank eurocurrency market.

 

Calculation Date”: as defined in Section 1.3(a).

 

Capital Expenditures”: for any period, with respect to any Person, the aggregate of all cash expenditures by such Person for the acquisition or leasing (pursuant to a lease under which obligations are Capital Lease Obligations but excluding any amount representing capitalized interest) of fixed or capital assets, computer software or additions to equipment (including replacements, capitalized repairs and improvements during such period) which are required to be capitalized under GAAP on a balance sheet of such Person; provided that in any event the term “Capital Expenditures” shall exclude: (i) any Permitted Acquisition and any other Investment permitted hereunder; (ii) any expenditures to the extent financed with any Reinvestment Deferred Amount; (iii) expenditures for leasehold improvements for which such Person is reimbursed in cash or receives a credit; and (iv) capital expenditures to the extent they are made with the proceeds of equity contributions (other than in respect of Disqualified Capital Stock) made to the Borrower after the Closing Date.

 

Capital Lease Obligations”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal Property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

 

Capital Stock”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, and any and all equivalent ownership interests in a Person (other than a corporation).

 

Carlyle Fund”: Carlyle Partners US V, L.P., and no other Person or entity.

 

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Cash Equivalents”: (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within eighteen months from the date of acquisition thereof;

 

(b) investments in commercial paper maturing within 270 days from the date of issuance thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

 

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000 and that issues (or the parent of which issues) commercial paper rated at least “Prime-1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P;

 

(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above;

 

(e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (d) above; and

 

(f) other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.

 

Cash Management Obligations”: obligations owed by the Borrower or any Subsidiary Guarantor to any Lender or any Affiliate of a Lender or any Person that was a Lender or an Affiliate of a Lender at the time the relevant cash management arrangements were entered into in respect of any overdraft and related liabilities arising from treasury, depository and cash management services, credit or debit card, or any automated clearing house transfers of funds.

 

Certificated Security”: as defined in the Guarantee and Collateral Agreement.

 

Change in Law”: (a) the adoption of any law, rule or regulation, or (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority.

 

Change of Control”: as defined in Section 8.1(j).

 

Charges”: as defined in Section 10.20.

 

Chattel Paper”: as defined in the Guarantee and Collateral Agreement.

 

Closing Date”: July 31, 2012.

 

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

 

Co-Documentation Agents”: BarclaysMUFG Bank PLC, Citigroup Global Markets Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities LLC, Morgan Stanley Senior Funding, Inc.,Sumitomo Mitsui Banking CorporationLtd., Truist Bank, Wells Fargo Bank, National Association and TheTD Bank of Tokyo-Mitsubishi UFJ Ltd (New York), N.A., each in its capacity as co-documentation agent.

 

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Collateral”: the meaning assigned to such term in the Guarantee and Collateral Agreement.

 

Collateral Agent”: Bank of America, N.A., in its capacity as collateral agent for the Secured Parties under the Security Documents and any of its successors and permitted assigns in such capacity in accordance with Section 9.9.

 

Commitment”: as to any Lender, the sum of the Revolving Commitments, the Extended Revolving Commitments and the New Loan Commitments (in each case, if any) of such Lender.

 

Committed Reinvestment Amount”: as defined in the definition of “Reinvestment Prepayment Amount.”

 

Commonly Controlled Entity”: an entity, whether or not incorporated, that is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group that includes the Borrower and that is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.

 

Commonly Controlled Plan”: as defined in Section 4.12(b).

 

Company”: as defined in the preamble hereto.

 

Compliance Certificate”: a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B.

 

Confidential Information”: as defined in Section 10.14.

 

Consolidated Current Assets”: at any date, all amounts (other than (a) cash, Cash Equivalents and Permitted Liquid Investments, (b) deferred financing fees and (c) payments for deferred taxes so long as such items described in clauses (b) and (c) are not cash items) 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 Borrower and its Restricted Subsidiaries at such date.

 

Consolidated Current Liabilities”: at any date, 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 Borrower and its Restricted Subsidiaries at such date, but excluding (a) the current portion of any Indebtedness of the Borrower and its Restricted Subsidiaries, (b) without duplication, all Indebtedness consisting of Revolving Loans or L/C Obligations, to the extent otherwise included therein, (c) amounts for deferred taxes and non-cash tax reserves accounted for pursuant to FASB Interpretation No. 48, (d) any equity compensation related liability and (e) any liabilities in respect of adjustments to the outstanding stock options in connection with the Recapitalization Transactions (as defined in the Existing Credit Agreement) or the 2012 Transactions.

 

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Consolidated EBITDA”: of any Person for any period, Consolidated Net Income of such Person and its Restricted Subsidiaries for such period plus, without duplication and, if applicable, except with respect to clauses (i) and (j) of this definition, to the extent reflected as a charge in the statement of such Consolidated Net Income (regardless of classification) for such period, the sum of:

 

(a) provisions for taxes based on income (or similar taxes in lieu of income taxes), profits, capital (or equivalents), including federal, foreign, state, local, franchise, excise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period;

 

(b) Consolidated Net Interest Expense and, to the extent not reflected in such Consolidated Net Interest Expense, any net losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, amortization or write-off of debt discount and debt issuance costs and commissions, premiums, discounts and other fees and charges associated with Indebtedness (including commitment, letter of credit and administrative fees and charges with respect to the Facilities);

 

(c) depreciation and amortization expense and impairment charges (including deferred financing fees, capitalized software expenditures, intangibles (including goodwill), organization costs and amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits);

 

(d) any extraordinary, unusual or non-recurring expenses or losses (including (x) losses on sales of assets outside of the ordinary course of business and restructuring and integration costs or reserves, including any severance costs, costs associated with office and facility openings, closings and consolidations, relocation costs and other non recurring business optimization expenses, (y) any expenses in connection with the Recapitalization Transactions (as defined in the Existing Credit Agreement) (including expenses in respect of adjustments to the outstanding stock options in connection with the Recapitalization Transactions) and (z) any expenses in connection with the 2012 Transactions (including expenses in respect of adjustments to the outstanding stock options in connection with the 2012 Transactions));

 

(e) any other non-cash charges, expenses or losses (except to the extent such charges, expenses or losses represent an accrual of or reserve for cash expenses in any future period or an amortization of a prepaid cash expense paid in a prior period);

 

(f) stock-option based and other equity-based compensation expenses (including any make-whole payments to option holders in connection with dividends paid prior to the Closing Date);

 

(g) transaction costs, fees, losses and expenses (in each case whether or not any transaction is actually consummated) (including those relating to the transactions contemplated hereby (including any amendments or waivers of the Loan Documents), and those payable in connection with the sale of Capital Stock, the incurrence of Indebtedness permitted by Section 7.2, transactions permitted by Section 7.4, Dispositions permitted by Section 7.5, or any Permitted Acquisition or other Investment permitted by Section 7.7);

 

(h) all fees and expenses paid pursuant to the Management Agreement;

 

(i) proceeds from any business interruption insurance (to the extent not reflected as revenue or income in such statement of such Consolidated Net Income);

 

(j) the amount of cost savings and other operating improvements and synergies projected by the Borrower in good faith and certified in writing to the Administrative Agent in accordance with the proviso to this clause (j) below to be realized as a result of any acquisition or Disposition (including the termination or discontinuance of activities constituting such business) of business entities or properties or assets, constituting a division or line of business of any business entity, division or line of business that is the subject of any such acquisition or Disposition, or from any operational change taken or committed to be taken during such period (in each case calculated on a pro forma basis as though such cost savings and other operating improvements and synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions to the extent already included in the Consolidated Net Income for such period, provided that (i) (A) such cost savings, operating improvements and synergies are reasonably anticipated to result from such actions, (B) such actions have been taken, or have been committed to be taken and the benefits resulting therefrom are anticipated by the Borrower to be realized within 24 months, (ii) no cost savings shall be added pursuant to this clause (j) to the extent already included in clause (d) above with respect to such period and (iii) the aggregate amount added back pursuant to this clause (j), together with the aggregate amount added back pursuant to the proviso at the end of this definition, shall not exceed 20% of Consolidated EBITDA for such period (prior to giving effect to such addbacks);

 

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(k) cash expenses relating to earn outs and similar obligations;

 

(l) charges, losses, lost profits, expenses or write-offs to the extent indemnified or insured by a third party, including expenses covered by indemnification provisions in any agreement in connection with the Merger Transactions, a Permitted Acquisition or any other acquisition permitted by Section 7.7;

 

(m) losses recognized and expenses incurred in connection with the effect of currency and exchange rate fluctuations on intercompany balances and other balance sheet items;

 

(n) costs of surety bonds in connection with financing activities of such Person and its Restricted Subsidiaries; and

 

(o) 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;

 

minus, to the extent reflected as income or a gain in the statement of such Consolidated Net Income for such period, the sum of:

 

(a) any extraordinary, unusual or non-recurring income or gains (including gains on the sales of assets outside of the ordinary course of business);

 

(b) any other non cash income or gains (other than the accrual of revenue in the ordinary course), but excluding any such items (i) in respect of which cash was received in a prior period or will be received in a future period or (ii) which represent the reversal in such period of any accrual of, or reserve for, anticipated cash charges in any prior period where such accrual or reserve is no longer required, all as determined on a consolidated basis; and

 

(c) gains realized and income accrued in connection with the effect of currency and exchange rate fluctuations on intercompany balances and other balance sheet items;

 

10

 

 

provided that for purposes of calculating Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for any period, (A) the Consolidated EBITDA of any Person or Properties constituting a division or line of business of any business entity, division or line of business, in each case, acquired by the Borrower or any of the Restricted Subsidiaries during such period and assuming any synergies, cost savings and other operating improvements to the extent certified by the Borrower as having been determined in good faith to be reasonably anticipated to be realizable within 24 months following such acquisition, or of any Subsidiary designated as a Restricted Subsidiary during such period, shall be included on a pro forma basis for such period (but assuming the consummation of such acquisition or such designation, as the case may be, occurred on the first day of such period) (provided that the aggregate amount added back pursuant to this proviso, together with the aggregate amount added back pursuant to clause (j) of this definition, shall not exceed 20% of Consolidated EBITDA for such period (prior to giving effect to such addbacks)) and (B) the Consolidated EBITDA of any Person or Properties constituting a division or line of business of any business entity, division or line of business, in each case, Disposed of by the Borrower or any of the Restricted Subsidiaries during such period, or of any Subsidiary designated as an Unrestricted Subsidiary during such period, shall be excluded for such period (assuming the consummation of such Disposition or such designation, as the case may be, occurred on the first day of such period). With respect to each Subsidiary or joint venture of which the Borrower’s direct and/or indirect percentage ownership is less than 90%, for purposes of calculating Consolidated EBITDA, the amount of income attributable to such Subsidiary or joint venture, as applicable, that shall be counted for such purposes shall equal the product of (x) the Borrower’s direct and/or indirect percentage ownership of such Subsidiary or joint venture and (y) the aggregate amount of the applicable item of such Subsidiary or joint venture, as applicable, except to the extent the application of GAAP already takes into account the non-wholly owned subsidiary relationship. Notwithstanding the foregoing, Consolidated EBITDA shall be calculated without giving effect to the effects of purchase accounting or similar adjustments required or permitted by GAAP in connection with any Investment (including any Permitted Acquisition) and any other acquisition or Investment. Unless otherwise qualified, all references to “Consolidated EBITDA” in this Agreement shall refer to Consolidated EBITDA of the Borrower.

 

Consolidated Net Income”: of any Person for any period, the consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that in calculating Consolidated Net Income of the Borrower and its consolidated Restricted Subsidiaries for any period, there shall be excluded (a) the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or loss) of any Person (other than a Restricted Subsidiary) in which the Borrower or any of its Restricted Subsidiaries has an ownership interest (including any joint venture), except to the extent that any such income is actually received by the Borrower or such Restricted Subsidiary in the form of dividends or similar distributions (which dividends and distributions shall be included in the calculation of Consolidated Net Income), (c) any income (loss) for such period attributable to the early extinguishment of Indebtedness or Hedge Agreements and (d) the cumulative effect of a change in accounting principles. Notwithstanding the foregoing, for purposes of calculating Excess Cash Flow, Consolidated Net Income (x) shall not include: (i) extraordinary gains for such period and (ii) [reserved], and (y) shall be reduced by any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, recapitalization, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction undertaken but not completed) and any charges or non-recurring costs incurred during such period as a result of any such transaction. Unless otherwise qualified, all references to “Consolidated Net Income” in this Agreement shall refer to Consolidated Net Income of the Borrower. There shall be excluded from Consolidated Net Income for any period the purchase accounting effects of adjustments to inventory, Property and equipment, software and other intangible assets and deferred revenue required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries), as a result of any consummated acquisition whether consummated before or after the Closing Date, or the amortization or write-off of any amounts thereof.

 

Consolidated Net Interest Coverage Ratio”: as of any date of determination, the ratio of (a) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period to (b) Consolidated Net Interest Expense of the Borrower and its Restricted Subsidiaries for such period.

 

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Consolidated Net Interest Expense”: of any Person for any period, (a) total cash interest expense (including that attributable to Capital Lease Obligations) of such Person and its Restricted Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Restricted Subsidiaries, minus (b) the sum of (i) total cash interest income of such Person and its Restricted Subsidiaries for such period (excluding any interest income earned on receivables due from clients), in each case determined in accordance with GAAP plus (ii) any one time financing fees (to the extent included in such Person’s consolidated interest expense for such period), including, with respect to the Borrower, those paid in connection with the Loan Documents or in connection with any amendment thereof. Unless otherwise qualified, all references to “Consolidated Net Interest Expense” in this Agreement shall refer to Consolidated Net Interest Expense of the Borrower.

 

Consolidated Net Senior Secured Leverage”: at any date, (a) the aggregate principal amount of all senior secured Funded Debt of the Borrower and its Restricted Subsidiaries on such date, minus (b) Unrestricted Cash on such date in an aggregate amount not to exceed $350,000,000500,000,000, in each case determined on a consolidated basis in accordance with GAAP.

 

Consolidated Net Senior Secured Leverage Ratio”: as of any date of determination, the ratio of (a) Consolidated Net Senior Secured Leverage on such day to (b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.

 

Consolidated Net Total Leverage”: at any date, (a) the aggregate principal amount of all Funded Debt of the Borrower and its Restricted Subsidiaries on such date, minus (b) Unrestricted Cash on such date in an aggregate amount not to exceed $350,000,000500,000,000, in each case determined on a consolidated basis in accordance with GAAP.

 

Consolidated Net Total Leverage Ratio”: as of any date of determination, the ratio of (a) Consolidated Net Total Leverage on such day to (b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.

 

Consolidated Total Assets”: the total assets of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the consolidated balance sheet of the Borrower for the most recently completed fiscal quarter for which financial statements have been delivered pursuant to Section 6.1(a) or (b).

 

Consolidated Working Capital”: at any date, the difference of (a) Consolidated Current Assets on such date minus (b) Consolidated Current Liabilities on such date, provided that, for purposes of calculating Excess Cash Flow, increases or decreases in Consolidated Working Capital shall be calculated without regard to changes in the working capital balance as a result of non-cash increases or decreases thereof that will not result in future cash payments or receipts or cash payments or receipts in any previous period, in each case, including any changes in Consolidated Current Assets or Consolidated Current Liabilities as a result of (i) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (ii) the effects of purchase accounting and (iii) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under Hedge Agreements. “Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any written or recorded agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

 

“Co-Syndication Agents”: Bank of America, N.A., JPMorgan Chase Bank, N.A., Fifth Third Bank, National Association, Sumitomo Mitsui Banking Corporation and PNC Bank, National Association, each in its capacity as co-syndication agent.

 

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“Covered Entity”: 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 Liabilities”: as defined in Section 10.23.

 

“Credit Party” has the meaning as defined in Section 2.18(f).

 

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

 

Declined Amount”: if at the time a Tranche B Prepayment Option Notice is given any Tranche A Term Loans are outstanding, the Declined Tranche A Amount, otherwise, the Declined Tranche B Amount.

 

Declined Proceeds”: the amount of any prepayment declined by the Required Prepayment Lenders plus any Declined Amounts.

 

Declined Tranche A Amount”: as defined in Section 2.12(e).

 

Declined Tranche B Amount”: as defined in Section 2.12(e).

 

Default”: any of the events specified in Section 8.1, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

 

Defaulting Lender”: means, subject to Section 2.7(a), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder, or (ii) pay to the Administrative Agent, any Issuing Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any Issuing Lender in writing that it does not intend to comply with its funding obligations hereunder, (c) has failed, within seven Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), (d) has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (e) has become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs or attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

 

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Derivatives Counterparty”: as defined in Section 7.6.

 

“Default Right”: as defined in, and to be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

Designation Date”: as defined in Section 2.26(f).

 

Disinterested Director”: as defined in Section 7.9.

 

Disposition”: with respect to any Property, any sale, sale and leaseback, assignment, conveyance, transfer or other effectively complete disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.

 

Disqualified Capital Stock”: Capital Stock that (a) requires the payment of any dividends (other than dividends payable solely in shares of Qualified Capital Stock), (b) matures or is mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof (other than solely for Qualified Capital Stock), in each case in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation on a fixed date or otherwise (including as the result of a failure to maintain or achieve any financial performance standards) or (c) are convertible or exchangeable, automatically or at the option of any holder thereof, into any Indebtedness, Capital Stock or other assets other than Qualified Capital Stock, in the case of clauses (a), (b) and (c), prior to the date that is 91 days after the Latest Maturity Date (other than (i) upon payment in full of the Obligations (other than (i) indemnification and other contingent obligations not yet due and owing and (ii) Obligations in respect of Specified Hedge Agreements, Specified Foreign Currency L/C Agreements or Cash Management Obligations) or (ii) upon a “change in control”; provided that any payment required pursuant to this clause (ii) is subject to the prior repayment in full of the Obligations (other than (i) indemnification and other contingent obligations not yet due and owing and (ii) Obligations in respect of Specified Hedge Agreements, Specified Foreign Currency L/C Agreements or Cash Management Obligations) that are accrued and payable and the termination of the Commitments); provided further, however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Borrower or the Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

 

Disqualified Institution”: (i) those institutions identified by the Borrower in writing to the Administrative Agent on or prior to the Closing Date, or, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) from time to time thereafter, and their known Affiliates (provided that no such update to the list of Disqualified Institutions after the Closing Date shall apply to retroactively disqualify any institution that has acquired an assignment, participation or other interest in any Loan or Commitment after the Closing Date and prior to the date such update is posted on the Platform) and (ii) business competitors of the Borrower and its Subsidiaries identified by Borrower in writing to the Administrative Agent from time to time and their known Affiliates. A list of the Disqualified Institutions, as in effect from time to time, will be posted by the Administrative Agent on the Platform and available for inspection by all Lenders.

 

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Dividend”: the payment of a dividend or other distribution (including payments in respect of stock options) by the Borrower to holders of Capital Stock of the Borrower, Investor or any Parent Company, in an amount not to exceed $1,000,000,000 on or within 60 days following the Closing Date, or, with respect to payments in respect of stock options, at or around the time of vesting or exercise of the option.

 

Dollar Equivalent”: at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Permitted Foreign Currency, the equivalent amount thereof in Dollars at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Permitted Foreign Currency.

 

Dollars” and “$”: dollars in lawful currency of the United States.

 

Domestic Subsidiary”: any direct or indirect Restricted Subsidiary organized under the laws of any jurisdiction within the United States.

 

EEA Financial Institution”: (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 and is subject to the supervision of an EEA Resolution Authority, 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 of an EEA Resolution Authority with its parent.

 

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

 

EEA Resolution Authority”: 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.

 

“Eighth Amendment Effective Date”: June 24, 2021.

 

“Eighth Amendment”: the Eighth Amendment to the Credit Agreement, dated as of the Eighth Amendment Effective Date, among the Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

 

Environmental Laws”: any and all applicable laws, rules, orders, regulations, statutes, ordinances, codes or decrees (including common law) of any international authority, foreign government, the United States, or any state, provincial, local, municipal or other governmental authority, regulating, relating to or imposing liability or standards of conduct concerning protection of the environment, natural resources or human health and safety as it relates to Releases of Materials of Environmental Concern, as has been, is now, or at any time hereafter is, in effect.

 

Environmental Liability”: any liability, claim, action, suit, judgment or order under or relating to any Environmental Law for any damages, injunctive relief, losses, fines, penalties, fees, expenses (including reasonable fees and expenses of attorneys and consultants) or costs, whether contingent or otherwise, including those arising from or relating to: (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Materials of Environmental Concern, (c) exposure to any Materials of Environmental Concern, (d) the Release of any Materials of Environmental Concern or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

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Equity Issuance”: any issuance by the Borrower or any Restricted Subsidiary of its Capital Stock in a public or private offering.

 

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

 

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

 

Eurocurrency Base Rate”: with respect to each day during each Interest Period, the rate per annum determined by reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (or, if the British Bankers’ Association no longer administers such rate, the equivalent rate for dollar deposits administered by any successor administrator of such rate) (“LIBOR”) for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on the Screen as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period, as the Eurocurrency Rate for deposits denominated with a maturity comparable to such Interest Period. In the event that such rate does not appear on the Screen at such time for any reason, then the “Eurocurrency Base Rate” shall be determined by reference to such other comparable publicly available service for displaying eurocurrency rates as may be selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered deposits at or about 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period in the interbank eurocurrency market where its eurodollar and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein.

 

Eurocurrency Loans”: Loans the rate of interest applicable to which is based upon the Eurocurrency Rate.

 

Eurocurrency Rate”: with respect to each day during each Interest Period pertaining to a Eurocurrency Loan, a rate per annum determined for such day in accordance with the following formula:

 

  Eurocurrency Base Rate  
  1.00 - Eurocurrency Reserve Requirements  

 

Notwithstanding the foregoing, if the Eurocurrency Rate shall be less than zero, then such rate shall be deemed to be zero for all purposes of this Agreement.

 

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

 

Eurocurrency Tranche”: the collective reference to Eurocurrency Loans under a particular Facility the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).

 

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Event of Default”: any of the events specified in Section 8.1; provided that any requirement set forth therein for the giving of notice, the lapse of time, or both, has been satisfied.

 

Excess Cash Flow”: for any fiscal year of the Borrower, the difference, if any, of (a) the sum, without duplication, of (i) Consolidated Net Income of the Borrower for such fiscal year, (ii) the amount of all non-cash charges (including depreciation, amortization, deferred tax expense and equity compensation expenses) deducted in arriving at such Consolidated Net Income, (iii) the amount of the decrease, if any, in Consolidated Working Capital for such fiscal year (excluding any decrease in Consolidated Working Capital relating to leasehold improvements for which the Borrower or any of its Subsidiaries is reimbursed in cash or receives a credit) and (iv) the aggregate net amount of non cash loss on the Disposition of Property by the Borrower and its Restricted Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income; minus (b) the sum, without duplication (including, in the case of clauses (ii) and (viii) below, duplication across periods (provided that all or any portion of the amounts referred to in clauses (ii) and (viii) below with respect to a period may be applied in the determination of Excess Cash Flow for any subsequent period to the extent such amounts did not previously result in a reduction of Excess Cash Flow in any prior period)) of:

 

(i) the amount of all non cash gains or credits to the extent included in arriving at such Consolidated Net Income (including credits included in the calculation of deferred tax assets and liabilities) and cash charges to the extent excluded in clauses (x) and (y) of the definition of “Consolidated Net Income” and to the extent included in arriving at such Consolidated Net Income;

 

(ii) the aggregate amount (A) actually paid by the Borrower and its Restricted Subsidiaries in cash during such fiscal year on account of Capital Expenditures and Permitted Acquisitions and (B) committed during such fiscal year to be used to make Capital Expenditures or Permitted Acquisitions which in either case have been actually made or consummated or for which a binding agreement exists as of the time of determination of Excess Cash Flow for such fiscal year (in each case under this clause (ii) other than to the extent any such Capital Expenditure or Permitted Acquisition is made (or, in the case of the preceding clause (B), is expected to be made) with the proceeds of new long-term Indebtedness or an Equity Issuance or with the proceeds of any Reinvestment Deferred Amount), in each case to the extent not already deducted from Consolidated Net Income;

 

(iii) the aggregate amount of all regularly scheduled principal payments and all prepayments of Indebtedness (including the Term Loans) of the Borrower and its Restricted Subsidiaries made during such fiscal year (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder and other than to the extent any such prepayments are the result of the incurrence of additional indebtedness and other than optional prepayments of the Term Loans and optional prepayments of Revolving Loans to the extent accompanied by permanent optional reductions of the Revolving Commitments), in each case to the extent not already deducted from Consolidated Net Income;

 

(iv) the amount of the increase, if any, in Consolidated Working Capital for such fiscal year (excluding any increase in Consolidated Working Capital relating to leasehold improvements for which the Borrower or any of its Subsidiaries is reimbursed in cash or receives a credit);

 

(v) the aggregate net amount of non-cash gain on the Disposition of Property by the Borrower and its Restricted Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income;

 

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(vi) fees and expenses incurred in connection with the 2012 Transactions or any Permitted Acquisition or Investment permitted by Section 7.7 (whether or not consummated), in each case to the extent not already deducted from Consolidated Net Income;

 

(vii) purchase price adjustments paid, in each case to the extent not already deducted from Consolidated Net Income, or received, in each case to the extent not already included in arriving at Consolidated Net Income, in connection with any Permitted Acquisition or any other acquisition or Investment permitted under Section 7.7;

 

(viii) (A) the net amount of Permitted Acquisitions and Investments made in cash during such period pursuant to paragraphs (a)(ii), (d), (f), (h), (l), (v), (y) and (z) of Section 7.7 (to the extent, in the case of clause (y), such Investment relates to Restricted Payments permitted under Section 7.6(c), (e), (f)(iii), (g), (h), (i) or (m)) or, at the option of the Borrower, committed during such period to be used to make Permitted Acquisitions and Investments pursuant to such paragraphs of Section 7.7 which have been actually made or for which a binding agreement exists as of the time of determination of Excess Cash Flow for such period (but excluding Investments among the Borrower and its Restricted Subsidiaries) and (B) permitted Restricted Payments made in cash in each case by the Borrower during such period and permitted Restricted Payments made by any Restricted Subsidiary to any Person other than the Borrower or any of the Restricted Subsidiaries during such period, in each case, to the extent permitted by Section 7.6(c), (e), (f)(iii), (g), (h), (i) or (m), in each case to the extent not already deducted from Consolidated Net Income; provided that the amount of Restricted Payments made pursuant to Section 7.6(e) and deducted pursuant to this clause (viii) shall not exceed $10,000,000 in any fiscal year;

 

(ix) the amount (determined by the Borrower) of such Consolidated Net Income which is mandatorily prepaid or reinvested pursuant to Section 2.12(b) (or as to which a waiver of the requirements of such Section applicable thereto has been granted under Section 10.1) prior to the date of determination of Excess Cash Flow for such fiscal year as a result of any Asset Sale or Recovery Event, in each case to the extent not already deducted from Consolidated Net Income;

 

(x) the aggregate amount of any premium or penalty actually paid in cash that is required to be made in connection with any prepayment of Indebtedness, in each case to the extent not already deducted from Consolidated Net Income;

 

(xi) cash payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and its Subsidiaries other than Indebtedness, in each case to the extent not already deducted from Consolidated Net Income;

 

(xii) the aggregate amount of expenditures actually made by the Borrower and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period and are not deducted in calculating Consolidated Net Income;

 

(xiii) cash expenditures in respect of Hedge Agreements during such period to the extent not deducted in arriving at such Consolidated Net Income;

 

(xiv) the amount of taxes (including penalties and interest) paid in cash in such period 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;

 

(xv) the amount of cash payments made in respect of pensions and other post-employment benefits in such period, in each case to the extent not deducted in determining Consolidated Net Income;

 

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(xvi) payments made in respect of the minority equity interests of third parties in any non-wholly owned Restricted Subsidiary in such period, including pursuant to dividends declared or paid on Capital Stock held by third parties in respect of such non-wholly-owned Restricted Subsidiary, in each case to the extent not deducted in determining Consolidated Net Income; and

 

(xvii) the amount representing accrued expenses for cash payments (including with respect to retirement plan obligations) that are not paid in cash in such fiscal year, in each case to the extent not deducted in determining Consolidated Net Income, provided that such amounts will be added to Excess Cash Flow for the following fiscal year to the extent not paid in cash and deducted from Consolidated Net Income during such following fiscal year.

 

Excess Cash Flow Application Amount”: with respect to any fiscal year, the lesser of (x) the product of the Excess Cash Flow Percentage applicable to such fiscal year times the Excess Cash Flow for such fiscal year and (y) the dollar amount that would result in the Consolidated Net Total Leverage Ratio being less than or equal to 3.50:1.00 on a pro forma basis as of the last day of the relevant fiscal year after giving effect to the application of such amount pursuant to Section 2.12.

 

Excess Cash Flow Application Date”: as defined in Section 2.12(c).

 

Excess Cash Flow Percentage”: 50%; provided that the Excess Cash Flow Percentage shall be reduced to 0% if the Consolidated Net Total Leverage Ratio as of the last day of the relevant fiscal year is not greater than 3.50 to 1.00.

 

Exchange Act”: the Securities Exchange Act of 1934, as amended.

 

Excluded Capital Stock”: (a) any Capital Stock with respect to which, in the reasonable judgment of the Borrower and the Administrative Agent, the cost of pledging such Capital Stock 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, (b) any Capital Stock to the extent that the pledge thereof to secure the Obligations would, in the reasonable judgment of the Borrower, result in adverse tax consequences to any Parent, Investor, the Borrower or any of the Borrower’s Subsidiaries (provided that any such designation of Capital Stock as Excluded Capital Stock shall be subject to the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed)), (c) solely in the case of any pledge of Capital Stock of any Foreign Subsidiary or any Foreign Subsidiary Holding Company to secure the Obligations, any Capital Stock of any class of such Foreign Subsidiary or such Foreign Subsidiary Holding Company in excess of 65% of the outstanding Capital Stock of such class (such percentage to be adjusted by mutual agreement (not to be unreasonably withheld) upon any change in law as may be required to avoid adverse U.S. federal income tax consequences to any Parent, Investor, the Borrower or any of the Borrower’s Subsidiaries), (d) any Capital Stock of any Subsidiary of a Foreign Subsidiary or a Foreign Subsidiary Holding Company, (e) any Capital Stock to the extent the pledge thereof would violate any applicable Requirement of Law, (f) the Capital Stock of any Special Purpose Entity, any Immaterial Subsidiary (for so long as such Subsidiary remains an Immaterial Subsidiary) or any Unrestricted Subsidiary and (g) in the case of any Capital Stock of any Subsidiary that is subject of a Lien permitted under Section 7.3(g) securing Indebtedness permitted under Section 7.2(t), (u) or (v), any Capital Stock of each such Subsidiary to the extent that (i) a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Obligations (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code) or (ii) any Contractual Obligation prohibits such a pledge without the consent of the other party; provided that this clause (ii) shall not apply if (A) such other party is a Loan Party or a wholly-owned Subsidiary or (B) consent has been obtained to consummate such pledge and for so long as such Contractual Obligation or replacement or renewal thereof is in effect or (iii) a pledge thereof to secure the Obligations would give any other party to a Contractual Obligation the right to terminate its obligations thereunder (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law); provided that this clause (iii) shall not apply if such other party is a Loan Party or a wholly-owned Subsidiary.

 

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Excluded Collateral”: as defined in Section 4.17(a).

 

Excluded Liability”: any liability that is excluded under the Bail-In Legislation from the scope of any Bail-In Action including, without limitation, any liability excluded pursuant to Article 44 of the Bank Recovery and Resolution Directive.

 

Excluded Real Property”: (a) any Real Property that is subject to a Lien expressly permitted by Section 7.3(g) or 7.3(z), (b) any Real Property with respect to which, in the reasonable judgment of the Borrower and the Administrative Agent, the cost of providing a mortgage on such Real Property 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 and (c) any Real Property to the extent providing a mortgage on such Real Property would (i) result in adverse tax consequences to any Parent, Investor, the Borrower or any of the Borrower’s Subsidiaries as reasonably determined by the Borrower (provided that any such designation of Real Property as Excluded Real Property shall be subject to the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed)), (ii) violate any applicable Requirement of Law, (iii) be prohibited by any applicable Contractual Obligations (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code) or (iv) give any other party (other than a Loan Party or a wholly-owned Subsidiary) to any contract, agreement, instrument or indenture governing such Real Property the right to terminate its obligations thereunder (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law).

 

Excluded Subsidiary”: (a) each Domestic Subsidiary which is an Immaterial Subsidiary as of the Closing Date and listed on Schedule 1.1A and each future Domestic Subsidiary which is an Immaterial Subsidiary, in each case, for so long as such Subsidiary remains an Immaterial Subsidiary, (b) each Domestic Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements of Section 6.8(c) (for so long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c) any Foreign Subsidiary Holding Company, (d) each Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (e) each Unrestricted Subsidiary, (f) each Domestic Subsidiary to the extent that (i) such Domestic Subsidiary is prohibited by any applicable Contractual Obligation or Requirement of Law from guaranteeing the Obligations, (ii) any Contractual Obligation prohibits such guarantee without the consent of the other party or (iii) a guarantee of the Obligations would give any other party to a Contractual Obligation the right to terminate its obligation thereunder; provided that clauses (ii) and (iii) shall not be applicable if (A) such other party is a Loan Party or a wholly-owned Subsidiary or (B) consent has been obtained to provide such guarantee and for so long as such Contractual Obligation or replacement or renewal thereof is in effect, (g) any Subsidiary that is a Special Purpose Entity or (h) any other Domestic Subsidiary with respect to which, in the reasonable judgment of the Borrower and the Administrative Agent, the cost of providing a guarantee is excessive in view of the benefits to be obtained by the Lenders.

 

Existing Credit Agreement”: the Second Amended and Restated Credit Agreement, dated as of February 3, 2011, among Investor, the Borrower and the lenders and other financial institutions party thereto.

 

Existing Letters of Credit”: Letters of Credit issued prior to, and outstanding on, the Closing Date and disclosed on Schedule 1.1D.

 

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Existing Loans”: as defined in Section 2.26(a).

 

Existing Revolving Loans”: as defined in Section 2.26(a).

 

Existing Revolving Tranche”: as defined in Section 2.26(a).

 

Existing Term Loans”: as defined in Section 2.26(a).

 

Existing Term Tranche”: as defined in Section 2.26(a).

 

Existing Tranche”: as defined in Section 2.26(a).

 

Extended Loans”: as defined in Section 2.26(a).

 

Extended Revolving Commitments”: as defined in Section 2.26(a).

 

Extended Revolving Tranche”: as defined in Section 2.26(a).

 

Extended Term Loans”: as defined in Section 2.26(a).

 

Extended Term Tranche”: as defined in Section 2.26(a).

 

Extended Tranche”: as defined in Section 2.26(a).

 

Extending Lender”: as defined in Section 2.26(b).

 

Extension”: as defined in Section 2.26(b).

 

Extension Amendment”: as defined in Section 2.26(c).

 

Extension Date”: as defined in Section 2.26(d).

 

Extension Election”: as defined in Section 2.26(b).

 

Extension Request”: as defined in Section 2.26(a).

 

Extension Series”: all Extended Loans or Extended Revolving Commitments, as applicable, 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 Loans or Extended Revolving Commitments, as applicable, provided for therein are intended to be part of any previously established Extension Series) and that provide for the same interest margins and amortization schedule.

 

Facility”: each of (a) the Initial Tranche A Term Loans and unused Commitments in respect thereof, if any, (the “Tranche A Term Facility”), (b) the Initial Tranche B Term Loans (the “Tranche B Term Facility”), (c) any New Loan Commitments and the New Loans made thereunder (a “New Facility”), (d) the Revolving Commitments and the extensions of credit made thereunder (the “Revolving Facility”), (e) any Extended Loans (of the same Extension Series ) (an “Extended Term Facility”), (f) any Extended Revolving Commitments (of the same Extension Series) (an “Extended Revolving Facility”), (g) any Refinancing Term Loans of the same Tranche (a “Refinancing Term Facility”) and (h) any Refinancing Revolving Commitments of the same Tranche (a “Refinancing Revolving Facility”).

 

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Fair Market Value”: with respect to any assets, Property (including Capital Stock) or Investment, the fair market value thereof as determined in good faith by the Borrower or, with respect to any such Property or Investment with a fair market value in excess of $25,000,00050,000,000, as determined in good faith by the Board of Directors of the Borrower; provided that, for purposes of the definition of “Asset Sale” and Section 7.5, the determination shall be made as of the date on which a legally binding commitment for the applicable Disposition or exchange was entered into.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreements entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.

 

Federal Funds Effective Rate”: for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

 

Fee Payment Date”: commencing on September 28, 2012, (a) the last Business Day of each March, June, September and December, (b) with respect to the Revolving Commitments, the last day of the Revolving Commitment Period and (c) with respect to the 2018 Delayed Draw Tranche A Term Commitments, the last day of the 2018 Delayed Draw Tranche A Term Loan Availability Period.

 

Fifth Amendment Effective Date”: March 7, 2018.

 

First Amendment” means the First Amendment to Credit Agreement, dated as of the First Amendment Effective Date, among the Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

 

First Amendment Effective Date” means August 16, 2013.

 

“Fitch”: Fitch Ratings Inc. or any successor to the rating agency business thereof.

 

Foreign Currency Equivalent”: at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Permitted Foreign Currency at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Permitted Foreign Currency with Dollars.

 

Foreign Currency L/C Agreements”: all agreements with respect to any Foreign Currency L/Cs entered into by the Borrower or any Restricted Subsidiary.

 

Foreign Currency L/Cs”: any letters of credit issued for the account of the Borrower or any Restricted Subsidiary in a currency other than Dollars.

 

Foreign Subsidiary”: any Restricted Subsidiary of the Borrower that is not a Domestic Subsidiary.

 

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Foreign Subsidiary Holding Company”: any Restricted Subsidiary of the Borrower which is a Domestic Subsidiary substantially all of the assets of which consist of the Capital Stock or Indebtedness of one or more Foreign Subsidiaries (or Restricted Subsidiaries thereof) and other assets relating to an ownership interest in such Capital Stock or Indebtedness, or Restricted Subsidiaries.

 

Fourth Amendment Effective Date”: February 6, 2017.

 

Funded Debt”: with respect to any Person, all Indebtedness of such Person of the types described in clauses (a), (b), (e), (g)(ii) or, to the extent related to Indebtedness of the types described in the preceding clauses, (d) of the definition of “Indebtedness”.

 

Funding Office”: the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.

 

GAAP”: generally accepted accounting principles in the United States as in effect from time to time. If at any time the SEC permits or requires U.S.-domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes and the Borrower notifies the Administrative Agent that it will effect such change, without limiting Section 10.16, effective from and after the date on which such transition from GAAP to IFRS is completed by the Borrower or the Parent, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the required transition date or the date specified in such notice, as the case may be, IFRS as in effect from time to time and (b) for prior periods, GAAP as defined in the first sentence of this definition.

 

Government Contracts”: as defined in the Guarantee and Collateral Agreement.

 

Governmental Authority”: any nation or government, any state, province or other political subdivision thereof and any governmental entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and, as to any Lender, any securities exchange and any self regulatory organization (including the National Association of Insurance Commissioners).

 

Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement, dated as of July 31, 2012, among Investor, the Borrower and each Subsidiary Guarantor, substantially in the form of Exhibit A, as the same may be amended, supplemented, waived or otherwise modified from time to time.

 

Guarantee Obligation”: as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) pursuant to which the guaranteeing person has issued a guarantee, reimbursement, counterindemnity or similar obligation, in either case guaranteeing or by which such Person becomes contingently liable for any Indebtedness (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing 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 (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital, equity capital or any other financial statement condition or liquidity 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 primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of  instruments for deposit or collection in the ordinary course of business and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets or any Investment permitted under this Agreement. The amount of any Guarantee Obligation of any guaranteeing Person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case, the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such Person in good faith.

 

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Guarantors”: the collective reference to Investor and the Subsidiary Guarantors.

 

Hedge Agreements”: all agreements with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions, in each case, entered into by the Borrower or any Restricted Subsidiary.

 

IFRS”: International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.

 

Immaterial Subsidiary”: on any date, any Subsidiary of the Borrower designated as such by the Borrower, but only to the extent that such Subsidiary has less than 5% of Consolidated Total Assets and 5% of annual consolidated revenues of the Borrower and its Restricted Subsidiaries as reflected on the most recent financial statements delivered pursuant to Section 6.1 prior to such date; provided that at no time shall all Immaterial Subsidiaries have in the aggregate Consolidated Total Assets or annual consolidated revenues (as reflected on the most recent financial statements delivered pursuant to Section 6.1 prior to such time) in excess of 7.5% of Consolidated Total Assets or annual consolidated revenues, respectively, of the Borrower and its Restricted Subsidiaries. As of the Closing Date, Booz Allen Transportation Inc. is hereby designated by the Borrower as an Immaterial Subsidiary.

 

Increased Amount Date”: as defined in Section 2.25(a).

 

Indebtedness” of any Person: without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person for the deferred purchase price of Property or services already received, (d) all Guarantee Obligations by such Person of Indebtedness of others, (e) all Capital Lease Obligations of such Person, (f) all payments that such Person would have to make in the event of an early termination, on the date Indebtedness of such Person is being determined in respect of outstanding Hedge Agreements (such payments in respect of any Hedge Agreement with a counterparty being calculated subject to and in accordance with any netting provisions in such Hedge Agreement), (g) the principal component of all obligations, contingent or otherwise, of such Person (i) as an account party in respect of letters of credit (other than any letters of credit, bank guarantees or similar instrument in respect of which a back-to-back letter of credit has been issued under or permitted by this Agreement) and (ii) in respect of bankers’ acceptances; provided that Indebtedness shall not include (A) trade and other ordinary course payables, accrued expenses and intercompany liabilities arising in the ordinary course of business, (B) prepaid or deferred revenue arising in the ordinary course of business, (C) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations of the seller of such asset or (D) earn-out and other contingent obligations until such obligations become a liability on the balance sheet of such Person in accordance with GAAP. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such Person in respect thereof.

 

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Indebtedness for Borrowed Money”: (a) to the extent the following would be reflected on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries prepared in accordance with GAAP, the principal amount of all Indebtedness of the Borrower and its Restricted Subsidiaries with respect to (i) borrowed money, evidenced by debt securities, debentures, acceptances, notes or other similar instruments and (ii) Capital Lease Obligations, (b) reimbursement obligations for letters of credit and financial guarantees (without duplication) (other than ordinary course of business contingent reimbursement obligations) and (c) Hedge Agreements; provided that the Obligations shall not constitute Indebtedness for Borrowed Money.

 

Indemnified Liabilities”: as defined in Section 10.5.

 

Indemnitee”: as defined in Section 10.5.

 

Initial Term Loans”: the collective reference to the Initial Tranche A Term Loans and the Initial Tranche B Term Loans.

 

Initial Tranche A Term Loans”: as defined in Section 2.1.

 

Initial Tranche B Term Loans”: as defined in Section 2.1.

 

Inside Maturity Additional Obligations”: as defined in the definition of “Additional Obligations.”

 

Inside Maturity Permitted Refinancing Obligations”: as defined in the definition of “Permitted Refinancing Obligations.”

 

Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

 

Insolvent”: pertaining to a condition of Insolvency.

 

Instrument”: as defined in the Guarantee and Collateral Agreement.

 

Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, domain names, patents, patent licenses, trademarks, trademark licenses, trade names, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

 

Intercreditor Agreement”: the intercreditor agreement substantially in the form of Exhibit E to be entered into as required by the terms hereof, as amended, supplemented, waived or otherwise modified from time to time.

 

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Interest Payment Date”: (a) commencing on September 28, 2012, as to any ABR Loan, the last Business Day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurocurrency Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Eurocurrency Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan), the date of any repayment or prepayment made in respect thereof.

 

Interest Period”: as to any Eurocurrency Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurocurrency Loan and ending one, two, three or six or (if available from all Lenders under the relevant Facility) nine or twelve months (or such other period acceptable to all such Lenders) thereafter, as selected by the Borrower in its notice of borrowing or notice of continuation or conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurocurrency Loan and ending one, two, three or six or (with the consent of each affected Lender under the relevant Facility) nine or twelve months (or such other period acceptable to all such Lenders) thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 1:00 P.M., New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

 

(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

 

(ii) any Interest Period that would otherwise extend beyond the scheduled Revolving Termination Date or beyond the date final payment is due on the Term Loans shall end on the Revolving Termination Date or such due date, as applicable; and

 

(iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.

 

“Investment Grade Event”: any date on which both (x) the Borrower shall have achieved Investment Grade Status and (y) no Initial Tranche B Term Loans or New Term Loans with original stated amortization of less than 5.0% per year (other than customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for original stated amortization of less than 5.0% per year) shall then be outstanding.

 

“Investment Grade Status”: as to any Person, that such Person has obtained any two of the following three public corporate or corporate family ratings: (a) BBB- or better by S&P; (b) Baa3 or better by Moody’s; and (c) BBB- or better by Fitch; in each case with no negative outlook.

 

Investments”: as defined in Section 7.7.

 

Investor”: Booz Allen Hamilton Investor Corporation, a Delaware corporation.

 

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Issuing Lenders”: (a) Bank of America, N.A., (b) solely with respect to the Existing Letters of Credit, Credit Suisse AG, Cayman Islands Branch, and (c) any other Revolving Lender from time to time designated by the Borrower, in its sole discretion, as an Issuing Lender with the consent of such other Revolving Lender.

 

Joinder Agreement”: an agreement substantially in the form of Exhibit H.

 

Joint Bookrunners”: Merrill Lynch, Pierce, Fenner & Smith IncorporatedBofA Securities, Inc., Credit Suisse Securities (USA) LLC, Barclays Bank PLC, Citigroup Global Markets Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities LLC, Morgan Stanley Senior Funding, Inc. and Sumitomo Mitsui Banking Corporation, in their capacity as joint bookrunners.

 

Latest Maturing Tranche A Term Loans”: at any date of determination, the Tranche (or Tranches) of Tranche A Term Loans maturing later than all other Tranche A Term Loans outstanding on such date.

 

Latest Maturing Tranche B Term Loans”: at any date of determination, the Tranche (or Tranches) of Tranche B Term Loans maturing later than all other Tranche B Term Loans outstanding on such date.

 

Latest Maturity Date”: at any date of determination, the latest maturity date or termination date applicable to any Loan or Commitment hereunder at such time.

 

Latest Tranche A Term Maturity Date”: at any date of determination, the latest maturity date or termination date applicable to any Tranche A Term Loan or New Loan Commitment to make Tranche A Term Loans hereunder at such time.

 

L/C Commitment”: $100,000,000200,000,000.

 

L/C Disbursements”: as defined in Section 3.4(a).

 

L/C Obligations”: at any time, an amount equal to the sum of (a) the Dollar Equivalent of the aggregate then undrawn and unexpired face amount of the then outstanding Letters of Credit and (b) the Dollar Equivalent of the aggregate amount of drawings under Letters of Credit that have not then been reimbursed. The L/C Obligations of any Lender at any time shall be its Revolving Percentage of the total L/C Obligations at such time. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.5. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, upon notice from the Administrative Agent to the Borrower such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

L/C Participants”: the collective reference to all the Revolving Lenders other than the applicable Issuing Lender and, for purposes of Section 3.4(d), the collective reference to all Revolving Lenders.

 

L/C Shortfall”: as defined in Section 3.4(d).

 

Lead Arrangers”: Merrill Lynch, Pierce, Fenner & Smith Incorporated and Credit Suisse Securities (USA)BofA Securities, Inc., JPMorgan Chase Bank, N.A., Fifth Third Bank, National Association, Sumitomo Mitsui Banking Corporation and PNC Capital Markets LLC in their capacity as joint lead arrangers and joint bookrunners.

 

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Lenders”: as defined in the preamble hereto.

 

Letters of Credit”: as defined in Section 3.1(a).

 

LIBOR”: as defined in the definition of “Eurocurrency Base Rate.”

 

LIBOR Screen Rate”: as defined in Section 1.6.

 

LIBOR Successor Rate”: as defined in Section 1.6.

 

LIBOR Successor Rate Conforming Changes”: as defined in Section 1.6.

 

Lien”: any mortgage, pledge, hypothecation, collateral assignment, encumbrance, lien (statutory or other), charge or other security interest or any other security agreement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing). For the avoidance of doubt, it is understood and agreed that the Borrower and any Restricted Subsidiary may, as part of its business, grant licenses to third parties to use Intellectual Property owned or developed by, or licensed to, such entity. For purposes of this Agreement and the other Loan Documents, such licensing activity, and licenses granted pursuant to the Merger Documents, shall not constitute a “Lien” on such Intellectual Property. Each of the Administrative Agent and each Lender understands that any such licenses may be exclusive to the applicable licensees, and such exclusivity provisions may limit the ability of the Administrative Agent to utilize, sell, lease, license or transfer the related Intellectual Property or otherwise realize value from such Intellectual Property pursuant hereto.

 

Limited Condition Acquisition”: (a) any acquisition by one or more of the Borrower and its Subsidiaries of any assets, business or Person permitted by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (b) any Investment or Restricted Payment requiring irrevocable notice or declaration in advance thereof.

 

Loan”: any loan made by any Lender pursuant to this Agreement.

 

Loan Documents”: the collective reference to this Agreement, the Security Documents and the Notes (if any), together with any amendment, supplement, waiver, or other modification to any of the foregoing.

 

Loan Parties”: Investor, the Borrower and each Subsidiary Guarantor.

 

Majority Facility Lenders”: with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche A Term Loans and unused Commitments in respect thereof, if any, Tranche B Term Loans, or the Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or (i) in the case of any Revolving Facility, prior to any termination of the Revolving Commitments under such Facility, the holders of more than 50% of the Revolving Commitments under such Facility, (ii) in the case of any New Facility that is a revolving credit facility, prior to any termination of the New Loan Commitments under such Facility, the holders of more than 50% of the New Loan Commitments under such Facility or (iii) in the case of any Extended Revolving Facility, prior to any termination of the Extended Revolving Commitments under such Facility, the holders of more than 50% of the Extended Revolving Commitments under such Facility); provided, however, that determinations of the “Majority Facility Lenders” shall exclude any Commitments or Loans held by the Carlyle Fund, Parent, any subsidiary of Parent or Defaulting Lenders.

 

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“Material Acquisition”: any acquisition of a majority controlling interest in the Capital Stock, or all or substantially all of the assets, of any Person, or of all or substantially all of the assets constituting a division, product line or business line of any Person, in each case for aggregate consideration in excess of $100,000,000 that, on a pro forma basis, results in an increase in the Consolidated Net Total Leverage Ratio.

 

Management Agreement”: the Management Agreement, by and between Booz Allen Hamilton Holding Corporation (formerly known as Explorer Holding Corporation), the Borrower and TC Group V, L.L.C., as in effect on the Closing Date and as modified from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed).

 

Material Adverse Effect”: a material adverse effect on (a) the business, operations, assets, financial condition or results of operations of the Borrower and its Restricted Subsidiaries, taken as a whole, or (b) the material rights and remedies available to the Administrative Agent and the Lenders, taken as a whole, under the Loan Documents.

 

Material Real Property”: any Real Property located in the United States and owned in fee by a Loan Party on the Closing Date having an estimated Fair Market Value exceeding $5,000,000 and any after-acquired Real Property located in the United States owned by a Loan Party having a gross purchase price exceeding $5,000,000 at the time of acquisition.

 

Material Securities Accounts”: as defined in the Guarantee and Collateral Agreement.

 

Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity and any other substances that are defined as hazardous or toxic under any Environmental Law, that are regulated pursuant to any Environmental Law.

 

Maximum Incremental Facilities Amount”: at any date of determination, an amount if, after giving pro forma effect to the incurrence of such amount (and in the case of any New Revolving Commitments or Revolving Commitment Increase being initially provided on any date of determination, as if loans thereunder were drawn in full on such date) and after giving effect to any acquisition consummated concurrently therewith and all other appropriate pro forma adjustment events, the Consolidated Net Senior Secured Leverage Ratio is equal to or less than 3.50:1.00 (it being understood that (A) if pro forma effect is given to the entire committed amount of any such amount, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause and (B) for purposes of calculating the Consolidated Net Senior Secured Leverage Ratio only, any such amount incurred shall be treated as if such amount is senior secured Funded Debt, regardless of whether such amount is actually secured).

 

Maximum Rate”: as defined in Section 10.20.

 

Merger Agreement”: the Agreement and Plan of Merger, dated as of May 15, 2008, by and among, Investor, the Company, Explorer Holding Corporation, Explorer Merger Sub Corporation and Booz & Company Inc.

 

Merger Documents”: “Merger Documents” (as defined in the Existing Credit Agreement).

 

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Merger Transactions”: the transactions contemplated by the Merger Documents.

 

Minimum Exchange Tender Condition”: as defined in Section 2.27(b).

 

Minimum Extension Condition”: as defined in Section 2.26(g).

 

Moody’s”: Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.

 

Mortgage”: any mortgage, deed of trust, hypothec, assignment of leases and rents or other similar document delivered on or after the Closing Date by any Loan Party in favor of, or for the benefit of, the Collateral Agent for the benefit of the Secured Parties, with respect to Mortgaged Properties, each substantially in form and substance reasonably acceptable to the Administrative Agent and the Borrower (taking into account the law of the jurisdiction in which such mortgage, deed of trust, hypothec or similar document is to be recorded), as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

Mortgaged Properties”: all Real Property that shall be subject to a Mortgage that is delivered pursuant to the terms of this Agreement.

 

Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash, Cash Equivalents and Permitted Liquid Investments (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) received by any Loan Party, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, consulting fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other customary fees and expenses actually incurred by any Loan Party in connection therewith; (ii) taxes paid or reasonably estimated to be payable by any Loan Party as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements); (iii) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (ii) above) (A) associated with the assets that are the subject of such event and (B) retained by the Borrower or any of the 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 event occurring on the date of such reduction and (iv) the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority interests and not available for distribution to or for the account of the Borrower or any Domestic Subsidiary as a result thereof and (b) in connection with any Equity Issuance or other issuance or sale of debt securities or instruments or the incurrence of Funded Debt, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, consulting fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

 

New Facility”: as defined in the definition of “Facility.”

 

New Lender”: as defined in Section 2.25(c).

 

New Loan Commitments”: as defined in Section 2.25(a).

 

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New Loans”: any loan made by any New Lender pursuant to this Agreement.

 

New Revolving Commitment”: as defined in Section 2.25(a).

 

New Revolving Loans”: as defined in Section 2.25(b).

 

New Subsidiary”: as defined in Section 7.2(t).

 

New Term Lender”: a Lender that has a New Term Loan.

 

New Term Loan Commitment”: as defined in Section 2.25(a).

 

New Term Loans”: as defined in Section 2.25(b).

 

Non-Defaulting Lender”: any Lender other than a Defaulting Lender.

 

Non-Excluded Subsidiary”: any Subsidiary of the Borrower which is not an Excluded Subsidiary.

 

Non-Excluded Taxes”: as defined in Section 2.20(a).

 

Non-Extending Lender”: as defined in Section 2.26(e).

 

Non-Guarantor Subsidiary”: any Subsidiary of the Borrower which is not a Subsidiary Guarantor.

 

Non-Recourse Debt”: Indebtedness (a) with respect to which no default would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of the Borrower or any of its Restricted Subsidiaries the outstanding principal amount of which individually exceeds $75,000,000120,000,000 to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity and (b) as to which the lenders or holders thereof will not have any recourse to the capital stock or assets of the Borrower or any of its Restricted Subsidiaries.

 

Non-US Lender”: as defined in Section 2.20(d).

 

Note”: any promissory note evidencing any Loan, which promissory note shall be in the form of Exhibit J-1, Exhibit J-2 or Exhibit J-3, as applicable, or such other form as agreed upon by the Administrative Agent and the Borrower.

 

Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) the Loans, the Reimbursement Obligations and all other obligations and liabilities of the Borrower to the Administrative Agent, the Collateral Agent or to any Lender (or, in the case of Specified Hedge Agreements, Specified Foreign Currency L/C Agreements or Cash Management Obligations of the Borrower or any of its Subsidiaries to the Administrative Agent, the Collateral Agent, any Lender or any Affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, in each case, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Hedge Agreement, any Specified Foreign Currency L/C Agreement or Cash Management Obligations or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise; provided that (a) obligations of the Borrower or any of the Subsidiary Guarantors under any Specified Hedge Agreement, any Specified Foreign Currency L/C Agreement or any Cash Management Obligations shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (b) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements, Specified Foreign Currency L/C Agreements or Cash Management Obligations.

 

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Other Intercreditor Agreement”: an intercreditor agreement in form and substance reasonably satisfactory to the Borrower and the Collateral Agent.

 

Other Taxes”: any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

 

Parent”: Booz Allen Hamilton Holding Corporation.

 

Parent Company”: any direct or indirect parent of Investor, including Parent.

 

Pari Passu Debt”: Indebtedness that is secured by a Lien on the Collateral ranking equal with the Lien on such Collateral securing the Obligations, either pursuant to the Intercreditor Agreement or one or more Other Intercreditor Agreements.

 

Participant”: as defined in Section 10.6(c)(i).

 

Participant Register”: as defined in Section 10.6(c)(iii).

 

Payment Amount”: as defined in Section 3.5.

 

PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

 

Permitted Acquisition”: (a) any acquisition (including, if applicable, in the case of any Intellectual Property, by way of license) approved by the Required Lenders, (b) any acquisition made solely with the Net Cash Proceeds of any substantially concurrent Equity Issuance or capital contribution (other than Disqualified Capital Stock) or (c) any acquisition of a majority controlling interest in the Capital Stock, or all or substantially all of the assets, of any Person, or of all or substantially all of the assets constituting a division, product line or business line of any Person (each, an “Acquisition”), so long as in the case of any Acquisition described in this clause (c), no Event of Default shall be continuing immediately after giving effect to such Acquisition (or, in the case of a Limited Condition Acquisition, no Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into).

 

Permitted Business”: the Business and any other services, activities or businesses incidental or directly related, similar or complementary to any line of business engaged in by the Borrower and its Subsidiaries as of the Closing Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.

 

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Permitted Debt Exchange”: as defined in Section 2.27(a).

 

Permitted Debt Exchange Notes”: as defined in Section 2.27(a).

 

Permitted Debt Exchange Offer”: as defined in Section 2.27(a).

 

Permitted Foreign Currency”: (a) with respect to any outstanding Letter of Credit denominated in a currency other than Dollars, the currency in which such Letter of Credit is denominated, and (b) with respect to any Letter of Credit requested to be issued in a currency other than Dollars, any foreign currency reasonably requested by the Borrower from time to time and in which an Issuing Lender may, in accordance with its policies and procedures in effect at such time, issue Letters of Credit.

 

Permitted Investors”: the collective reference to the Sponsor and its Affiliates (but excluding any operating portfolio companies of the foregoing), the members of management of any Parent Company, Investor and its Subsidiaries that have ownership interests in any Parent Company or Investor as of the Closing Date, the First Amendment Effective Date , the Second Amendment Effective Date or the Third Amendment Effective Date and the directors of Investor and its Subsidiaries or any Parent Company as of the Closing Date, the First Amendment Effective Date, the Second Amendment Effective Date or the Third Amendment Effective Date and any Permitted Investors as such term is defined in the Existing Credit Agreement.

 

Permitted Liquid Investments”: (a) securities issued or directly and fully and unconditionally guaranteed or insured by the United States government 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, (b) certificates of deposit, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding 24 months and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $250,000,000, (c) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (a) and (b) above entered into with any financial institution meeting the qualifications specified in clause (b) above, (d) commercial paper having a rating of at least A 1 from S&P or P 1 from Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) and maturing within 24 months after the date of acquisition and Indebtedness and 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, (e) readily marketable direct obligations issued by any state of the United States or any political subdivision 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, (f) marketable short-term money market and similar securities having a rating of at least P-1 or A-1 from 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 rating agency) and in each case maturing within 24 months after the date of creation or acquisition thereof, (g) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AA- (or the equivalent thereof) or better by S&P or Aa3 (or the equivalent thereof) or better by Moody’s, (h) instruments equivalent to those referred to in clauses (a) through (g) above denominated in euro or pound sterling or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction including certificates of deposit or bankers’ acceptances of, and bank deposits with, any bank organized under the laws of any country that is a member of the European Economic Community or Canada or any subdivision thereof, whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof, in each case with maturities of not more than 24 months from the date of acquisition and (i) Investments in funds which invest substantially all of their assets in Cash Equivalents of the kinds described in clauses (a) through (h) of this definition.

 

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Permitted Refinancing Obligations”: senior or subordinated Indebtedness (which Indebtedness may be (x) secured by the Collateral on a junior basis, (y) unsecured or (z) in the case of Indebtedness incurred under this Agreement, customary bridge financings or debt securities, secured by the Collateral on a pari passu basis), including customary bridge financings, in each case issued or incurred by the Borrower or a Guarantor to refinance Indebtedness and/or Revolving Commitments incurred under this Agreement and the Loan Documents, including Indebtedness incurred to pay fees, discounts, premiums and expenses in connection therewith; provided that (a) the terms of such Indebtedness, other than a revolving credit facility that does not include scheduled commitment reductions prior to maturity, shall not provide for a maturity date or weighted average life to maturity earlier than the maturity date or shorter than the weighted average life to maturity of the Indebtedness being refinanced, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the maturity date or the weighted average life to maturity of the Indebtedness being refinanced, as applicable), except that the Borrower and the Guarantors may incur Indebtedness that matures earlier than the maturity date and has a weighted average life to maturity shorter than that of the Indebtedness being refinanced, as applicable (such Indebtedness, the “Inside Maturity Permitted Refinancing Obligations”) so long as such Inside Maturity Permitted Refinancing Obligations mature no earlier than, and will have a weighted average life to maturity no shorter than the Latest Tranche A Term Maturity Date or the weighted average life to maturity of the Latest Maturing Tranche A Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Latest Tranche A Term Maturity Date or the weighted average life to maturity of the Latest Maturing Tranche A Term Loans, as applicable), (b) any such Indebtedness that is a revolving credit facility shall not mature prior to the maturity date of the revolving commitments being replaced, (c) such Indebtedness shall not be secured by any Lien on any asset of any Loan Party that does not also secure the Obligations, or be guaranteed by any Person other than the Guarantors and (d) if secured by Collateral, such Indebtedness (and all related Obligations) either shall be incurred under this Agreement on a senior secured pari passu basis with the other Obligations or shall be subject to the terms of an Intercreditor Agreement or an Other Intercreditor Agreement.

 

Permitted Refinancings”: with respect to any Person, refinancings, replacements, modifications, refundings, renewals or extensions of Indebtedness provided that (a) there is no increase in the principal amount (or accrued value) thereof (excluding accrued interest, fees, discounts, premiums and expenses), (b) the weighted average life to maturity of such Indebtedness is greater than or equal to the shorter of (i) the weighted average life to maturity of the Indebtedness being refinanced and (ii) the remaining weighted average life to maturity of the Latest Maturing Tranche B Loans (other than a shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for a shorter weighted average life to maturity than the shorter of (i) the weighted average life to maturity of the Indebtedness being refinanced and (ii) the remaining weighted average life to maturity of the Latest Maturing Tranche B Term Loans), (c) immediately after giving effect to such refinancing, replacement, refunding, renewal or extension, no Event of Default shall be continuing (or, in the case of an incurrence of Indebtedness that is necessary or advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Acquisition, no Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into (or, if applicable, the date of delivery of an irrevocable notice or declaration of such Limited Condition Acquisition)) and (d) with respect to any such Indebtedness that is secured, neither the Borrower nor any Restricted Subsidiary shall be an obligor or guarantor of any such refinancings, replacements, modifications, refundings, renewals or extensions except to the extent that such Person was (or, when initially incurred could have been) such an obligor or guarantor in respect of the applicable Indebtedness being modified, refinanced, replaced, refunded, renewed or extended.

 

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Person”: an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

 

Plan”: at a particular time, any employee benefit plan as defined in Section 3(3) of ERISA and in respect of which the Borrower or any of its Restricted Subsidiaries is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA, including a Multiemployer Plan.

 

Platform”: as defined in Section 10.2(c).

 

Pledged Securities”: as defined in the Guarantee and Collateral Agreement.

 

Pledged Stock”: as defined in the Guarantee and Collateral Agreement.

 

Pricing Grid”: the table set forth below:

 

Consolidated

Net Total

Leverage

Ratio

Applicable

Margin for

Initial Tranche

A Term Loans

that are

Eurocurrency

Loans

Applicable

Margin for

Initial Tranche

A Term Loans

that are

ABR

Loans

Applicable

Margin for

Revolving Loans

that are

Eurocurrency

Loans

Applicable

Margin for

Revolving Loans

that are

ABR Loans

Applicable

Commitment

Fee Rate

≥ 4.00:1.00 2.00% 1.00% 2.00% 1.00% 0.350%
< 4.00:1.00 but ≥ 3.003.25 to 1.00 1.75% 0.75% 1.75% 0.75% 0.300%
< 3.003.25 to 1.00 but ≥ 2.00:1.002.50:1.00 1.50% 0.50% 1.50% 0.50% 0.250%
< 2.50 to 1.00 but ≥ 2.00:1.00 1.25% 0.25% 1.25% 0.25% 0.200%
< 2.00:1.00 1.125% 0.125% 1.125% 0.125% 0.175%

 

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Changes in the Applicable Margin with respect to Loans or the Applicable Commitment Fee Rate resulting from changes in the Consolidated Net Total Leverage Ratio shall become effective on the date on which financial statements are delivered to the Lenders pursuant to Section 6.1 and shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial statements referred to above are not delivered within the time periods specified in Section 6.1, then, at the option of (and upon the delivery of notice (telephonic or otherwise) by) the Administrative Agent or the Required Lenders, until such financial statements are delivered, the Consolidated Net Total Leverage Ratio as at the end of the fiscal period that would have been covered thereby shall for the purposes of this definition be deemed to be greater than 4.00 to 1.00. In addition, at all times while an Event of Default set forth in Section 8.1(a) or 8.1(f) shall have occurred and be continuing, the Consolidated Net Total Leverage Ratio shall for the purposes of the Pricing Grid be deemed to be greater than 4.00 to 1.00.

 

Prime Rate”: as defined in the definition of “ABR.”

 

Property”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Capital Stock.

 

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

Public Company Costs”: costs relating to compliance with the provisions of the Securities Act and the Exchange Act, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ 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.

 

Public Information”: as defined in Section 10.2(c).

 

Public Lender”: as defined in Section 10.2(c).

 

“QFC”: the meaning assigned to the term “qualified financial contract” in, and to be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

Qualified Capital Stock”: any Capital Stock that is not Disqualified Capital Stock.

 

Rate Determination Notice”: as defined in Section 2.22.

 

Real Property”: collectively, all right, title and interest of the Borrower or any other Subsidiary in and to any and all parcels of real property owned or operated by the Borrower or any other Subsidiary together with all improvements and appurtenant fixtures, easements and other property and rights incidental to the ownership, lease or operation thereof.

 

Recovery Event”: any settlement of or payment in respect of any Property or casualty insurance claim or any condemnation proceeding relating to any asset of the Borrower or any Domestic Subsidiary that is a Restricted Subsidiary, in an amount for each such event exceeding $5,000,00010,000,000.

 

Refinanced Revolving Commitments”: as defined in Section 10.1(d).

 

Refinanced Term Loans”: as defined in Section 10.1(c).

 

Refinancing”: the repayment of Indebtedness under and termination of the Existing Credit Agreement on the Closing Date.

 

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Refinancing Revolving Commitments”: as defined in Section 10.1(d).

 

Refinancing Term Loans”: as defined in Section 10.1(c).

 

Register”: as defined in Section 10.6(b)(iv).

 

Regulation U”: Regulation U of the Board as in effect from time to time.

 

Reimbursement Obligation”: the obligation of the Borrower to reimburse an Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing Lender.

 

Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by any Loan Party for its own account in connection therewith that are not applied to prepay the Term Loans pursuant to Section 2.12 as a result of the delivery of a Reinvestment Notice.

 

Reinvestment Event”: any Asset Sale or Recovery Event in respect of which a Loan Party has delivered a Reinvestment Notice.

 

Reinvestment Notice”: a written notice signed on behalf of any Loan Party by a Responsible Officer stating that such Loan Party (directly or indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets or make investments useful in the Business.

 

Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount (or the relevant portion thereof, as contemplated by clause (ii) of the definition of “Reinvestment Prepayment Date”) relating thereto less any amount contractually committed by the applicable Loan Party (directly or indirectly through a Subsidiary) to be expended prior to the relevant Reinvestment Prepayment Date (a “Committed Reinvestment Amount”), or actually expended prior to such date, in each case to acquire assets or make investments useful in the Business.

 

Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier of (i) the date occurring 12 months after such Reinvestment Event and (ii) with respect to any portion of a Reinvestment Deferred Amount, the date that is three Business Days following the date on which any Loan Party shall have determined not to acquire assets or make investments useful in the Business with such portion of such Reinvestment Deferred Amount.

 

Related Business Assets”: assets (other than cash, Cash Equivalents or Permitted Liquid Investments) used or useful in a Permitted Business; provided that any assets received by the Borrower or a Restricted Subsidiary in exchange for assets transferred by the 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.

 

Release”: any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within or upon any building, structure or facility.

 

Reorganization”: with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

 

Replaced Lender”: as defined in Section 2.24.

 

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Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived by the PBGC in accordance with the regulations thereunder.

 

Representatives”: as defined in Section 10.14.

 

Repricing Transaction”: other than in connection with a transaction involving a Change of Control, any prepayment of the Initial Tranche B Term Loans using proceeds of Indebtedness incurred by the Borrower or one or more Subsidiaries from a substantially concurrent issuance or incurrence of secured, syndicated term loans with annual amortization of less than 5.0% provided by one or more banks, financial institutions or other Persons for which the Yield payable thereon (disregarding any performance or ratings based pricing grid that could result in a lower interest rate based on future performance) is lower than the Yield with respect to the Initial Tranche B Term Loans on the date of such optional prepayment or any amendment, amendment and restatement or any other modification of this Agreement that reduces the Yield with respect to any Initial Tranche B Term Loans; provided that the primary purpose of such prepayment, amendment, amendment and restatement or modification, as reasonably determined by the Borrower in good faith, is to refinance Initial Tranche B Term Loans at a lower interest rate.

 

Required Lenders”: at any time, the holders of more than 50% of (a) until the Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate unpaid principal amount of the Term Loans and unused Commitments in respect thereof, if any, then outstanding, (ii) the Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Revolving Extensions of Credit then outstanding, (iii) the New Loan Commitments then in effect in respect of any New Facility that is a revolving credit facility or, if such New Loan Commitments have been terminated, the New Revolving Loans in respect thereof then outstanding and (iv) the Extended Revolving Commitments then in effect in respect of any Extended Revolving Facility or, if such Extended Revolving Commitments have been terminated, the Extended Loans in respect thereof then outstanding; provided, however, that determinations of the “Required Lenders” shall exclude any Commitments or Loans held by the Carlyle Fund, Parent, any subsidiary of Parent or Defaulting Lenders.

 

Required Prepayment Lenders”: the holders of more than 50% of the aggregate unpaid principal amount of the Term Loans; provided, however, that determinations of the “Required Prepayment Lenders” shall exclude any Term Loans held by the Carlyle Fund, Parent, any subsidiary of Parent or Defaulting Lenders.

 

Required Revolving Lenders”: at any time, the holders of more than 50% of (a) until the Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Revolving Extensions of Credit then outstanding, (ii) the New Loan Commitments then in effect in respect of any New Facility that is a revolving credit facility or, if such New Loan Commitments have been terminated, the New Revolving Loans in respect thereof then outstanding and (iii) the Extended Revolving Commitments then in effect in respect of any Extended Revolving Facility or, if such Extended Revolving Commitments have been terminated, the Extended Loans in respect thereof then outstanding; provided, however, that determinations of the “Required Revolving Lenders” shall exclude any Revolving Commitments or Revolving Loans held by the Carlyle Fund, Parent, any subsidiary of Parent or Defaulting Lenders.

 

Requirement of Law”: 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 to which such Person or any of its Property is subject.

 

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“Rescindable Amount” has the meaning as defined in Section 2.18(f).

 

“Resolution Authority”: means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

Responsible Officer”: the chief executive officer, president, chief financial officer (or similar title), director of finance (or similar title), controller or treasurer (or similar title) of the Borrower and, with respect to financial matters, the chief financial officer (or similar title), director of finance (or similar title), controller or treasurer (or similar title) of the Borrower and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the Borrower so designated by any of the foregoing officers in a notice to the Administrative Agent or pursuant to an agreement between the Borrower and the Administrative Agent.

 

Restricted Payments”: as defined in Section 7.6.

 

Restricted Subsidiary”: any Subsidiary of the Borrower which is not an Unrestricted Subsidiary.

 

Revaluation Date”: (a) the first Business Day of each calendar month, (b) each date of issuance of a Letter of Credit denominated in an Permitted Foreign Currency, (c) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof and (d) each date of any payment by an Issuing Lender under any Letter of Credit denominated in a Permitted Foreign Currency.

 

Revolving Commitment Increase”: as defined in Section 2.25(a).

 

Revolving Commitment Period”: the period from and including the Closing Date to the Revolving Termination Date.

 

Revolving Commitments”: as to any Revolving Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Letters of Credit in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite such Lender’s name on Schedule 2.1, or, as the case may be, in the Assignment and Assumption, Joinder Agreement or Lender Joinder Agreement pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to an Extension Amendment, an Increase Supplement or otherwise pursuant to the terms hereof. The aggregate amount of the Revolving Commitments as of the Closing Date is $500,000,000.

 

Revolving Extensions of Credit”: as to any Revolving Lender at any time, an amount equal to the sum of, without duplication (a) the aggregate principal amount of all Revolving Loans held by such Lender then outstanding and (b) such Lender’s Revolving Percentage of the L/C Obligations then outstanding.

 

Revolving Facility”: as defined in the definition of “Facility.”

 

Revolving Lender”: each Lender that has a Revolving Commitment or that holds Revolving Loans.

 

Revolving Loans”: as defined in Section 2.4(a).

 

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Revolving Percentage”: as to any Revolving Lender at any time, the percentage which such Lender’s Revolving Commitment then constitutes of the aggregate Revolving Commitments or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which such Revolving Lender’s Revolving Extensions of Credit then outstanding constitutes of the aggregate Revolving Extensions of Credit then outstanding.

 

Revolving Termination Date”: July 23June 24, 20232026.

 

Rollover Indebtedness” means Indebtedness of a Loan Party issued to any Lender in lieu of such Lender’s pro rata portion of any repayment of Term Loans made pursuant to Section 2.11 or Section 2.12 so long as (other than in connection with a refinancing in full of the Facilities) the terms of such Indebtedness shall be of a type permitted by, and shall comply with the proviso set forth in, the definition of “Permitted Refinancing Obligations”.

 

S&P”: Standard & Poor’s Ratings Group, Inc., or any successor to the rating agency business thereof.

 

Scheduled Unavailability Date”: as defined in Section 1.6.

 

Screen”: the relevant display page for the Eurocurrency Base Rate (as reasonably determined by the Administrative Agent) on the Bloomberg Information Service or any successor thereto; provided that if the Administrative Agent determines that there is no such relevant display page or otherwise in Bloomberg for the Eurocurrency Base Rate, “Screen” means such other comparable publicly available service for displaying the Eurocurrency Base Rate (as reasonably determined by the Administrative Agent).

 

SEC”: the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).

 

Second Amendment”: the Second Amendment to Credit Agreement, dated as of the Second Amendment Effective Date, among the Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

 

Second Amendment Effective Date”: May 7, 2014.

 

Section 2.26 Additional Amendment”: as defined in Section 2.26(c).

 

Secured Parties”: collectively, the Lenders, the Administrative Agent, the Collateral Agent, any Issuing Lender, any other holder from time to time of any of the Obligations and, in each case, their respective successors and permitted assigns.

 

Securities Act”: the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

Security”: as defined in the Guarantee and Collateral Agreement.

 

Security Documents”: the collective reference to the Guarantee and Collateral Agreement and all other security documents (including any Mortgages) hereafter delivered to the Administrative Agent or the Collateral Agent purporting to grant a Lien on any Property of any Loan Party to secure the Obligations.

 

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Seventh Amendment Effective Date”: November 26, 2019.

 

Significant Subsidiaries”: Restricted Subsidiaries of the Borrower constituting, individually or in the aggregate (as if such Restricted Subsidiaries constituted a single Subsidiary), a “significant subsidiary” of the Borrower within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC, as in effect on the date hereof.

 

Single Employer Plan”: any Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA and in respect of which any Loan Party or any Commonly Controlled Entity is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

Sixth Amendment Effective Date”: July 23, 2018.

 

Sixth Amendment”: the Sixth Amendment to the Credit Agreement, dated as of the Sixth Amendment Effective Date, among the Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

 

Solvent”: with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the solvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured and (iii) except as otherwise provided by applicable law, the amount of “contingent liabilities” at any time shall be the amount thereof which, in light of all the facts and circumstances existing at such time, can reasonably be expected to become actual or matured liabilities.

 

Special Purpose Entity”: Booz Allen Hamilton Intellectual Property Holdings, LLC or any other Person formed or organized primarily for the purpose of holding trademarks, service marks, trade names, logos, slogans and/or internet domain names containing the mark “Booz” without the names “Allen” or “Hamilton” and licensing such marks to Booz & Company Inc. and its Affiliates.

 

Specified Existing Tranche”: as defined in Section 2.26(a).

 

Specified Foreign Currency L/C Agreements”: any Foreign Currency L/C Agreement (a) entered into by (i) the Borrower or any Subsidiary Guarantor and (ii) any Person that was a Lender or any Affiliate thereof at the time such Foreign Currency L/C Agreement was entered into, as counterparty and (b) that has been designated by such Lender and the Borrower, by notice to the Administrative Agent, as a Specified Foreign Currency L/C Agreement. The designation of any Foreign Currency L/C Agreement as a Specified Foreign Currency L/C Agreement shall not create in favor of the Lender or Affiliate thereof that is a party thereto (or their successor or assigns) any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Guarantee and Collateral Agreement. For the avoidance of doubt, all Foreign Currency L/C Agreements in existence on the Closing Date between the Borrower or any Subsidiary Guarantor and any Lender, as listed on Schedule 1.1B, shall constitute Specified Foreign Currency L/C Agreements.

 

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Specified Hedge Agreement”: any Hedge Agreement (a) entered into by (i) the Borrower or any Subsidiary Guarantor and (ii) any Person that was a Lender or any Affiliate thereof at the time such Hedge Agreement was entered into, as counterparty and (b) that has been designated by such Lender and the Borrower, by notice to the Administrative Agent, as a Specified Hedge Agreement. The designation of any Hedge Agreement as a Specified Hedge Agreement shall not create in favor of the Lender or Affiliate thereof that is a party thereto (or their successors or assigns) any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Guarantee and Collateral Agreement. For the avoidance of doubt, all Hedge Agreements in existence on the Closing Date between the Borrower or any Subsidiary Guarantor and any Lender, as listed on Schedule 1.1C, shall constitute Specified Hedge Agreements.

 

Sponsor”: The Carlyle Group and any Affiliates thereof (but excluding any operating portfolio companies of the foregoing).

 

Spot Rate”: with respect to any currency, the rate determined by the applicable Issuing Lender to be the rate quoted by such Issuing Lender as the spot rate for the purchase by such Issuing Lender of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that such Issuing Lender may obtain such spot rate from another financial institution designated by it if it does not have as of the date of determination a spot buying rate for any such currency; provided, further that such Issuing Lender may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in a Permitted Foreign Currency.

 

Stated Maturity”: with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the re-purchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).

 

Subsidiary”: as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person; provided that any joint venture that is not required to be consolidated with the Borrower and its consolidated Subsidiaries in accordance with GAAP shall not be deemed to be a “Subsidiary” for purposes hereof. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a direct or indirect Subsidiary or Subsidiaries of the Borrower.

 

Subsidiary Guarantors”: (a) each Domestic Subsidiary other than any Excluded Subsidiary and (b) any other Subsidiary of the Borrower that is a party to the Guarantee and Collateral Agreement.

 

Successor Benchmark Rate”: as defined in Section 1.6.

 

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

 

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Syndication Agent”: Credit Suisse Securities (USA) LLC, in its capacity as syndication agent.

 

Taxes”: all present and future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

Term Lenders”: the collective reference to the Tranche A Term Lenders and the Tranche B Term Lenders.

 

Term Loans”: the collective reference to the Tranche A Term Loans and the Tranche B Term Loans.

 

Test Period”: on any date of determination, the period of four consecutive fiscal quarters of the Borrower (in each case taken as one accounting period) most recently ended on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 6.1.

 

Third Amendment”: the Third Amendment to Credit Agreement, dated as of the Third Amendment Effective Date, among the Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

 

Third Amendment Effective Date”: July 13, 2016.

 

Tranche”: (a) with respect to Term Loans or commitments, refers to whether such Term Loans or commitments are (1) Initial Tranche A Term Loans and/or Commitments in respect thereof, (2) Initial Tranche B Term Loans, (3) New Term Loans and/or Commitments in respect thereof with the same terms and conditions made on the same day, (4) Extended Term Loans (of the same Extension Series) or (5) Refinancing Term Loans with the same terms and conditions made on the same day and (b) with respect to Revolving Loans or commitments, refers to whether such Revolving Loans are (1) Initial Revolving Commitments or Initial Revolving Loans, (2) New Revolving Commitments with the same terms and conditions made on the same day or Revolving Loans in respect thereof, (3) Extended Revolving Loans (of the same Extension Series) or (4) Refinancing Revolving Commitments with the same terms and conditions made on the same day or Revolving Loans in respect thereof.

 

Tranche A Mandatory Prepayment Date”: as defined in Section 2.12(e).

 

Tranche A Prepayment Option Notice”: as defined in Section 2.12(e).

 

Tranche A Term Commitment”: as to any Tranche A Term Lender, the obligation of such Tranche A Term Lender to make an Initial Tranche A Term Loan to the Borrower in the principal amount set forth under the heading “Tranche A Term Commitment” opposite such Tranche A Term Lender’s name on Schedule 2.1 to this Agreement. The aggregate principal amount of the Tranche A Term Commitments as of the Closing Date is $725,000,000.

 

Tranche A Term Facility”: as defined in the definition of “Facility.”

 

Tranche A Term Lender”: each Lender that holds a Tranche A Term Loan.

 

Tranche A Term Loan”: the Initial Tranche A Term Loans, New Term Loans designated by the Borrower as Tranche A Term Loans or Extended Term Loans in respect of either of the foregoing, as the context may require.

 

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Tranche A Term Maturity Date”: July 23June 24, 20232026.

 

Tranche B Mandatory Prepayment Date”: as defined in Section 2.12(e).

 

Tranche B Prepayment Amount”: as defined in Section 2.12(e).

 

Tranche B Prepayment Option Notice”: as defined in Section 2.12(e).

 

Tranche B Term Commitment”: as to any Tranche B Term Lender, the obligation of such Tranche B Term Lender to make an Initial Tranche B Term Loan to the Borrower in the principal amount set forth under the heading “Tranche B Term Commitment” opposite such Tranche B Term Lender’s name on Schedule 2.1 to this Agreement. The aggregate principal amount of the Tranche B Term Commitments as of the Closing Date is $1,025,000,000.

 

Tranche B Term Facility”: as defined in the definition of “Facility.”

 

Tranche B Term Lender”: each Lender that holds a Tranche B Term Loan.

 

Tranche B Term Loan”: the Initial Tranche B Term Loans, New Term Loans (other than New Term Loans designated by the Borrower as Tranche A Term Loans) or Extended Term Loans in respect of either of the foregoing, as the context may require.

 

Tranche B Term Maturity Date”: November 26, 2026.

 

Transferee”: any Assignee or Participant.

 

Trigger Date”: as defined in Section 2.12(b).

 

Type”: as to any Loan, its nature as an ABR Loan or Eurocurrency Loan.

 

“UK Financial Institutions”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

United States”: the United States of America.

 

Unrestricted Cash”: as at any date of determination, the aggregate amount of cash, Cash Equivalents and Permitted Liquid Investments included in the cash accounts that would be listed on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries as at such date, to the extent such cash, Cash Equivalents and Permitted Liquid Investments are not (a) subject to a Lien securing any Indebtedness or other obligations, other than (i) the Obligations or (ii) any such other Indebtedness that is subject to the Intercreditor Agreement or any Other Intercreditor Agreement or (b) classified as “restricted” (unless so classified solely because of any provision under the Loan Documents or any other agreement or instrument governing other Indebtedness that is subject to the Intercreditor Agreement or any Other Intercreditor Agreement governing the application thereof or because they are subject to a Lien securing the Obligations or other Indebtedness that is subject to the Intercreditor Agreement or any Other Intercreditor Agreement).

 

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Unrestricted Subsidiary”: (i) any Subsidiary of the Borrower designated as such and listed on Schedule 4.14 on the Closing Date and (ii) any Subsidiary of the Borrower that is designated by a resolution of the Board of Directors of the Borrower as an Unrestricted Subsidiary, but only to the extent that, in the case of each of clauses (i) and (ii), such Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary unless (x) the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower or (y) the Borrower or any Restricted Subsidiary would be permitted to enter into such agreement, contract, arrangement or understanding with an Unrestricted Subsidiary pursuant to Section 7.9; (c) is a Person with respect to which neither the Borrower nor any of the Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe for additional Capital Stock or warrants, options or other rights to acquire Capital Stock or (y) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results, unless, in each case, the Borrower or any Restricted Subsidiary would be permitted to incur any such obligation with respect to an Unrestricted Subsidiary pursuant to Section 7.7; and (d) does not guarantee or otherwise provide credit support after the time of such designation for any Indebtedness of the Borrower or any of its Restricted Subsidiaries, in the case of clauses (a), (b) and (c), except to the extent not otherwise prohibited by Section 7; provided that after giving effect to any such designation of a Domestic Subsidiary, the combined Consolidated EBITDA of Domestic Subsidiaries that are Unrestricted Subsidiaries for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1 does not exceed 5% of the Consolidated EBITDA of the Borrower and its Subsidiaries for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes hereof. Subject to the foregoing, the Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary or any Restricted Subsidiary to be an Unrestricted Subsidiary; provided that (i) such designation shall only be permitted if no Default or Event of Default (or, in the case of a designation that is necessary or advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Acquisition, no Default or Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into (or, if applicable, the date of delivery of an irrevocable notice for or declaration of such Limited Condition Acquisition)) would be in existence following such designation and after giving effect to such designation the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1, (ii) any designation of an Unrestricted Subsidiary as a Restricted Subsidiary shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and (iii) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be deemed to be an Investment in an Unrestricted Subsidiary and shall reduce amounts available for Investments in Unrestricted Subsidiaries permitted by Section 7.7 in an amount equal to the Fair Market Value of the Subsidiary so designated; provided that the Borrower may subsequently redesignate any such Unrestricted Subsidiary as a Restricted Subsidiary so long as the Borrower does not subsequently re-designate such Restricted Subsidiary as an Unrestricted Subsidiary for a period of the succeeding four fiscal quarters.

 

US Lender”: as defined in Section 2.20(e).

 

USA Patriot Act”: as defined in Section 10.18.

 

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Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

Yield”: on any date on which the “Yield” is required to be calculated hereunder will be the internal rate of return on the Initial Tranche B Term Loans or any new syndicated loans, as applicable, determined by the Administrative Agent in consultation with the Borrower utilizing (a) the greater of (i) if applicable, any “LIBOR floor” applicable to the Initial Tranche B Term Loans or any new syndicated loans, as applicable, on such date and (ii) the price of a LIBOR swap-equivalent maturing on the earlier of (x) the date that is four years following such date and (y) the final maturity date of the Initial Tranche B Term Loans or any new syndicated loans, as applicable; (b) the Applicable Margin for the Initial Tranche B Term Loans or any new syndicated loans, as applicable, on such date; and (c) the issue price of the Initial Tranche B Term Loans or any new syndicated loans, as applicable (after giving effect to any original issue discount or upfront fees paid to the market (but excluding commitment, arrangement, structuring or other fees in respect of the Initial Tranche B Term Loans or any new syndicated loans, as applicable, that are not generally shared with the relevant Lenders) in respect of the Initial Tranche B Term Loans or any new syndicated loans, as applicable, calculated based on an assumed four year average life to maturity).

 

1.2               Other Definitional Provisions.

 

(a)                Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

 

(b)                As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to the Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” and (iii) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time.

 

(c)                The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Annex, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(d)                The term “license” shall include sub-license. The term “documents” includes any and all documents whether in physical or electronic form.

 

(e)                The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

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(f)                 Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein, and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.

 

1.3               Pro Forma Calculations. (i) Any calculation to be determined on a “pro forma” basis, after giving “pro forma” effect to certain transactions or pursuant to words of similar import and (ii) the Consolidated Net Senior Secured Leverage Ratio, the Consolidated Net Total Leverage Ratio and the Consolidated Net Interest Coverage Ratio, in each case, shall be calculated as follows:

 

(a)                for purposes of making the computation referred to above, in the event that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness subsequent to the commencement of the period for which such ratio is being calculated but on or prior to or substantially concurrently with the event for which the calculation is made (a “Calculation Date”), then except as otherwise set forth in clauses (d) and (e) below, such calculation shall be made giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness as if the same had occurred at the beginning of the applicable Test Period; provided that for purposes of making the computation of Consolidated Net Senior Secured Leverage or Consolidated Net Total Leverage for the computation of Consolidated Net Senior Secured Leverage Ratio or Consolidated Net Total Leverage Ratio, as applicable, Consolidated Net Senior Secured Leverage or Consolidated Net Total Leverage, as applicable, shall be Consolidated Net Senior Secured Leverage or Consolidated Net Total Leverage as of the date the relevant action is being taken giving pro forma effect to any redemption, retirement or extinguishment of Indebtedness in connection with such event;

 

(b)                for purposes of making the computation referred to above, if any Investments, Dispositions or designations of Unrestricted Subsidiaries or Restricted Subsidiaries are made (or committed to be made pursuant to a definitive agreement) subsequent to the commencement of the period for which such calculation is being made but on or prior to or simultaneously with the relevant Calculation Date, then such calculation shall be made giving pro forma effect to such Investments, Dispositions and designations as if the same had occurred at the beginning of the applicable Test Period in a manner consistent, where applicable, with the pro forma adjustments set forth in clause (j) of and the last proviso of the first sentence of the definition of “Consolidated EBITDA.” If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment or Disposition that would have required adjustment pursuant to this provision, then such calculation shall be made giving pro forma effect thereto for such Test Period as if such Investment or Disposition had occurred at the beginning of the applicable Test Period;

 

(c)                for purposes of determining any financial ratio or making any financial covenant calculation for any period or a portion of a period prior to the first delivery of financial statements pursuant to Section 6.1, the Consolidated Net Senior Secured Leverage Ratio, the Consolidated Net Total Leverage Ratio and the Consolidated Net Interest Coverage Ratio shall be determined based on the most recent financial statements of the Borrower that have been furnished pursuant to Section 6.1(a) or (b) of the Existing Credit Agreement and this Agreement, and the levels for the Consolidated Net Total Leverage Ratio and the Consolidated Net Interest Coverage Ratio shall be the levels set forth in Sections 7.1(a) and (b) of this Agreement for the fiscal period ended September 30, 2012;

 

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(d)                for purposes of calculating the principal amount of Indebtedness permitted to be incurred pursuant to either Section 2.25(a)(x) or Section 7.2(i)(i), in each case, in reliance on the definition of “Maximum Incremental Facilities Amount,” any pro forma calculation of the Consolidated Net Senior Secured Leverage Ratio shall not give effect to any other incurrence of Indebtedness on the date of determination pursuant to Section 2.25(a)(y) or any other clause or sub-clause of Section 7.2;

 

(e)                for purposes of calculating the amount of Liens permitted to be incurred pursuant to either (x) (solely with respect to Indebtedness incurred pursuant to Section 2.25(a)(x) in reliance on the definition of “Maximum Incremental Facilities Amount”) Section 7.3(h) or (y) (solely with respect to Indebtedness incurred pursuant to Section 7.2(i)(i) in reliance on the definition of “Maximum Incremental Facilities Amount”) Section 7.3(g), any pro forma calculation of the Consolidated Net Senior Secured Leverage Ratio shall not give effect to any other incurrence of Liens on the date of determination pursuant to any other clause or sub-clause of Section 7.3; and

 

(f)                 for purposes of (x) determining compliance with any provision of this Agreement which requires pro forma compliance with the covenants set forth in Section 7.1 or pro forma calculation of the Consolidated Net Senior Secured Leverage Ratio, Consolidated Net Total Leverage Ratio or the Consolidated Net Interest Coverage Ratio or (y) testing baskets set forth in Article VII of this Agreement (including baskets measured as a percentage of Consolidated EBITDA), in each case, solely for purposes of determining whether the incurrence of Indebtedness or Liens, or the making of Investments, Restricted Payments, fundamental changes under Section 7.4 or the designation of an Unrestricted Subsidiary, in each case necessary or advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Acquisition is permitted (and, for the avoidance of doubt, not for purposes of determining quarterly compliance with the financial covenant set forth in Section 7.1), the date of determination shall, at the option of the Borrower, be the time the definitive agreements for such Limited Condition Acquisition are entered into (or, if applicable, the date of delivery of an irrevocable notice or declaration of such Limited Condition Acquisition) after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable Test Period (in a manner consistent, where applicable, with the pro forma adjustments set forth in clause (j) of and the last proviso of the first sentence of the definition of “Consolidated EBITDA”), and, for the avoidance of doubt, if any of such baskets or ratios are exceeded as a result of fluctuations in such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken; provided that if the Borrower has made such an election, in connection with the calculation of any basket or ratio availability with respect to the incurrence of Indebtedness or Liens, or the making of Investments, Restricted Payments, Dispositions, fundamental changes under Section 7.4 or the designation of an Unrestricted Subsidiary (excluding the financial covenant set forth in Section 7.1) on or following the date of such election and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition (or, if applicable, the notice or declaration of such Limited Condition Acquisition) is terminated, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisitions and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated, except to the extent that such calculation would result in a lower Consolidated Net Senior Secured Leverage Ratio or Consolidated Net Total Leverage Ratio or a higher Consolidated Net Interest Coverage Ratio or larger basket, as applicable, than would apply if such calculation was made without giving Pro Forma Effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof);

 

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provided that notwithstanding the foregoing, when calculating the Consolidated Net Total Leverage Ratio or the Consolidated Net Interest Coverage Ratio, as applicable, for purposes of (i) determining the Applicable Margin, (ii) determining the Applicable Commitment Fee Rate and (iii) determining actual compliance (and not pro forma compliance or compliance on a pro forma basis) with the covenants pursuant to Section 7.1, any pro forma event of the type set forth in clauses (a) or (b) of this Section 1.3 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.

 

1.4               Exchange Rates; Currency Equivalents. The applicable Issuing Lender shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of the face amount of Letters of Credit denominated in Permitted Foreign Currencies and of L/C Disbursements in respect thereof. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Each applicable Issuing Lender shall notify the Administrative Agent and the Borrower on each Revaluation Date of the Spot Rates determined by it and the related Dollar Equivalent of L/C Obligations then outstanding. Solely for purposes of Sections 2 and 3 and related definitional provisions to the extent used in such Sections, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the applicable L/C Issuer and notified to the Borrower and the Administrative Agent in accordance with this Section 1.4.

 

1.5               Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of the Application or any other document, agreement or instrument entered into by the applicable Issuing Lender and the Borrower with respect thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

1.6               Eurocurrency Base Rate Discontinuation. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, but subject to Section 2.6, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or the Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or the Required Lenders (as applicable) have determined, that:

 

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

 

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

 

(c)                syndicated loans then currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,

 

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then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 p.m., New York City time on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.

 

If no LIBOR Successor Rate has been determined and the circumstances under clause (a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Loans shall be suspended (to the extent of the affected Eurocurrency Loans or Interest Periods), and (y) the Eurodollar Rate component shall no longer be utilized in determining the ABR. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Loans (to the extent of the affected Eurocurrency Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans (subject to the foregoing clause (y)) in the amount specified therein.

 

Notwithstanding anything else herein, in no event shall the LIBOR Successor Rate be less than zero for purposes of this Agreement.

 

LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).

 

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

 

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SECTION 2.          AMOUNT AND TERMS OF COMMITMENTS

 

2.1               Term Commitments. Subject to the terms and conditions hereof, (a) each Tranche A Term Lender severally agrees to make a term loan (an “Initial Tranche A Term Loan”) in Dollars to the Borrower on the Closing Date in an amount which will not exceed the amount of the Tranche A Term Commitment of such Lender, and (b) each Tranche B Term Lender severally agrees to make a term loan (an “Initial Tranche B Term Loan”) in Dollars to the Borrower on the Closing Date in an amount which will not exceed the amount of the Tranche B Term Commitment of such Lender. The aggregate outstanding principal amount of the Term Loans for all purposes of this Agreement and the other Loan Documents shall be the stated principal amount thereof outstanding from time to time. The Term Loans may from time to time be Eurocurrency Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.

 

2.2               Procedure for Initial Term Loan Borrowing. The Borrower shall give the Administrative Agent irrevocable written notice (which notice must be received by the Administrative Agent one Business Day prior to the anticipated Closing Date) requesting that the Term Lenders make the Initial Term Loans on the Closing Date and specifying the amount to be borrowed and the requested Interest Period, if applicable. Upon receipt of such notice the Administrative Agent shall promptly notify each Term Lender thereof. Not later than 11:00 A.M., New York City time, on the Closing Date each Term Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Initial Term Loan or Initial Term Loans to be made by such Lender. The Administrative Agent shall credit the account designated in writing by the Borrower to the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Lenders in immediately available funds.

 

2.3               Repayment of Term Loans.

 

(a)                The Initial Tranche A Term Loan of each Tranche A Term Lender shall be payable in equal consecutive quarterly installments on the last Business Day of each March, June, September and December following the SixthEighth Amendment Effective Date, commencing on the last Business Day of DecemberSeptember, 20182021, in an amount equal to one and one-quarter percent (1.25%) of the stated principal amount of the Initial Tranche A Term Loans funded on the SixthEighth Amendment Effective Date (which installments shall, to the extent applicable, be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.18(b), and/or be increased as a result of any increase in the amount of Initial Tranche A Term Loans pursuant to Supplemental Term Loan Commitments (including, without limitation, pursuant to the 2018 Delayed Draw Tranche A Term Commitments) (such increased amortization payments to be calculated in the same manner (and on the same basis) as the amortization payments for the Initial Tranche A Term Loans outstanding as of the SixthEighth Amendment Effective Date)), with the remaining balance thereof payable on the Tranche A Term Maturity Date.

 

(b)                The Initial Tranche B Term Loan of each Tranche B Term Lender shall be payable in equal consecutive quarterly installments, commencing on the last Business Day of March, 2020, on the last Business Day of each March, June, September and December following the Seventh Amendment Effective Date in an amount equal to one quarter of one percent (0.25%) of the stated principal amount of the Initial Tranche B Term Loans funded on the Seventh Amendment Effective Date (which installments shall, to the extent applicable, be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.18(b), or be increased as a result of any increase in the amount of Initial Tranche B Term Loans pursuant to Supplemental Term Loan Commitments (such increased amortization payments to be calculated in the same manner (and on the same basis) as the amortization payments for the Initial Tranche B Term Loans made as of the Seventh Amendment Effective Date)), with the remaining balance thereof payable on the Tranche B Term Maturity Date.

 

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2.4               Revolving Commitments.

 

(a)                Subject to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) in Dollars to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which when added to such Lender’s Revolving Percentage of the L/C Obligations then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period, the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be Eurocurrency Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.13.

 

(b)                The Borrower shall repay all outstanding Revolving Loans made to it on the Revolving Termination Date.

 

2.5               Procedure for Revolving Loan Borrowing. The Borrower may borrow under the Revolving Commitments during the Revolving Commitment Period on any Business Day; provided that the Borrower shall give the Administrative Agent irrevocable written notice pursuant to a Borrowing Notice (which notice must be received by the Administrative Agent (i) in the case of Eurocurrency Loans, prior to 12:00 Noon, New York City time, three Business Days prior to the requested Borrowing Date or (ii) in the case of ABR Loans, prior to 12:00 Noon, New York City time, on the proposed Borrowing Date), specifying (x) the amount and Type of Revolving Loans to be borrowed, (y) the requested Borrowing Date and (z) in the case of Eurocurrency Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. Each borrowing by the Borrower under the Revolving Commitments shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof (or, if the then aggregate Available Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof. Each Revolving Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 11:00 A.M. (or, in the case of ABR Loans being made pursuant to a notice delivered on the proposed Borrowing Date, 3:00 P.M.), New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent crediting the account designated in writing by the Borrower to the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by such Revolving Lenders and in like funds as received by the Administrative Agent. If no election as to the Type of a Revolving Loan is specified, then the requested Loan shall be an ABR Loan. If no Interest Period is specified with respect to any requested Eurocurrency Loan, the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

2.6               [Reserved].Eurocurrency Base Rate Discontinuation After Eighth Amendment Effective Date. (a) As of the Eighth Amendment Effective Date, the provisions of this Section 2.6 apply to govern the effect of a Benchmark Transition Event (such term, and the related terms, as defined below in this Section 2.6) as it relates solely to (i) the Revolving Commitments and the extensions of credit thereunder, (ii) the Tranche A Term Loans and (iii) any other Commitments or Loans first established or made after the Eighth Amendment Effective Date. At such time as all Tranche B Term Loans outstanding on the Eighth Amendment Effective Date shall have been repaid in full, the provisions of Section 1.6 shall cease to be of any force and effect.

 

(b)               Notwithstanding anything to the contrary herein or in any other Loan Document:

 

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(i)        On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of LIBOR’s administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-week, 1-month, 2-month, 3-month, 6-month and 12- month U.S. dollar LIBOR tenor settings. On the earliest of (A) the date that all Available Tenors of U.S dollar LIBOR have permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative, (B) the Outside Benchmark Transition Date and (C) the Early Opt-in Effective Date in respect of a SOFR Early Opt-in, in the case of the preceding clauses (A) and (C) subject to Section 2.6(d), if the then-current Benchmark is LIBOR, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.

 

(ii)        (x) Upon (A) the occurrence of a Benchmark Transition Event or (B) a determination by the Administrative Agent that neither of the alternatives under clause (1) of the definition of Benchmark Replacement are available, in each case subject to Section 2.6(d), the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders whose Commitments and Loans are subject to this Section 2.6 without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Lenders holding more than 50% of the sum of the unused Commitments and aggregate outstanding principal amount of such Loans (in each case, excluding the Commitments and Loans of any Defaulting Lender) (and any such objection shall be conclusive and binding absent manifest error); provided that solely in the event that the then-current Benchmark at the time of such Benchmark Transition Event is not a SOFR-based rate, the Benchmark Replacement therefor shall be determined in accordance with clause (1) of the definition of Benchmark Replacement unless the Administrative Agent determines that neither of such alternative rates is available.

 

(y) On the Early Opt-in Effective Date in respect of an Other Rate Early Opt-in, the Benchmark Replacement will replace LIBOR for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document.

 

(iii)       At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans subject to this Section 2.6 to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans of the applicable Facility. During the period referenced in the foregoing sentence, the component of ABR based upon the Benchmark will not be used in any determination of ABR.

 

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(iv)       In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective, subject to Section 2.6(d), without any further action or consent of any other party to this Agreement.

 

(v)       The Administrative Agent will promptly notify the Lenders whose Commitments and Loans are subject to this Section 2.6 of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent pursuant to this Section 2.6(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.6(b).

 

(vi)       At any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (B) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.

 

(c)                As used in this Section 2.6:

 

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such 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 Benchmark, as applicable, pursuant to this Agreement as of such date.

 

“Benchmark” means, initially, LIBOR; provided that if a replacement of the Benchmark has occurred pursuant to Section 2.6(b) then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

 

“Benchmark Replacement” means:

 

(1)For purposes of Section 2.6(b)(i), the first alternative set forth below that can be determined by the Administrative Agent:
   
(a)the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration, or
   
(b)the sum of: (i) Daily Simple SOFR and (ii) 0.26161% (26.161 basis points);

 

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provided that, if initially LIBOR is replaced with the rate contained in clause (b) above (Daily Simple SOFR plus 26.161 basis points) and subsequent to such replacement, the Administrative Agent determines that Term SOFR has become available and is administratively feasible for the Administrative Agent in its sole discretion, and the Administrative Agent notifies the Borrower and the Lenders whose Commitments and Loans are subject to this Section 2.6 of such availability, then, subject to Section 2.6(d), from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Benchmark Replacement shall be as set forth in clause (a) above; and

 

(2)       For purposes of Section 2.6(b)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by a Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;

 

provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than 0.00%, the Benchmark Replacement will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.

 

Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent with the Borrower’s written consent (such consent not to be unreasonably withheld or delayed).

 

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

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“Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.

 

“Daily Simple SOFR” with respect to any applicable determination date means the secured overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).

 

“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders whose Commitments and Loans are subject to this Section 2.6, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to such Lenders, written notice of objection to such Early Opt-in Election from Lenders holding more than 50% of the sum of the unused Commitments and aggregate outstanding principal amount of such Loans (in each case, excluding the Commitments and Loans of any Defaulting Lender).

 

“Early Opt-in Election” means the occurrence of:

 

(1)a determination by the Administrative Agent, or a notification by the Borrower to the Administrative Agent that the Borrower has made a determination, that U.S. dollar-denominated syndicated credit facilities currently being executed, or that include language similar to that contained in Section 2.6(b), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, and
   
(2)the joint election by the Administrative Agent and the Borrower to replace LIBOR with a Benchmark Replacement and the provision by the Administrative Agent of written notice of such election to the Lenders whose Commitments and Loans are subject to this Section 2.6.

 

“Other Rate Early Opt-inmeans the Administrative Agent and the Borrower have elected to replace LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (1) an Early Opt-in Election and (2) Section 2.6(b)(ii) and paragraph (2) of the definition of “Benchmark Replacement”.

 

“Outside Benchmark Transition Date” means June 30, 2023.

 

“Relevant Governmental Body” means 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.

 

“SOFR Early Opt-in” means the Administrative Agent and the Borrower have elected to replace LIBOR pursuant to (1) an Early Opt-in Election and (2) Section 2.6(b)(i) and paragraph (1) of the definition of “Benchmark Replacement”.

 

“Term SOFR” means, for the applicable corresponding tenor (or if any Available Tenor of a Benchmark does not correspond to an Available Tenor for the applicable Benchmark Replacement, the closest corresponding Available Tenor and if such Available Tenor corresponds equally to two Available Tenors of the applicable Benchmark Replacement, the corresponding tenor of the shorter duration shall be applied), the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

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(d)               Notwithstanding anything in this Section 2.6 to the contrary, no Benchmark Replacement or Benchmark Replacement Conforming Changes shall be implemented hereunder prior to the Outside Benchmark Transition Date unless the Administrative Agent shall have received the Borrower’s written consent to such implementation (such consent not to be unreasonably withheld or delayed).

 

2.7               Defaulting Lenders.

 

(a)                Defaulting Lender Cure. If the Borrower, the Administrative Agent and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments under the applicable Facility (without giving effect to Section 3.4(d)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

(b)                Defaulting Lender Waterfall. Any payment of principal, interest or other amounts (other than the payment of (i) commitment fees under Section 2.9, (ii) default interest under Section 2.15(c) and (iii) Letter of Credit fees under Section 3.3, which in each case shall be applied pursuant to the provisions of those Sections) received by the Administrative Agent for the account of any Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) shall be applied by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent pursuant to Section 9.7; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender (without duplication of the application of any cash collateral provided by the Borrower pursuant to Section 3.4(d)) to any Issuing Lender hereunder; third, to be held as security for any L/C Shortfall (without duplication of any cash collateral provided by the Borrower pursuant to Section 3.4(d)) in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent; fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the Issuing Lenders as a result of any final non-appealable judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any final non-appealable judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 5.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 3.4(d). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to be held as security in a cash collateral account pursuant to this Section 2.7(b) shall be deemed paid to and redirected by such Defaulting Lender and shall satisfy the Borrower’s payment obligation in respect thereof in full, and each Lender irrevocably consents hereto.

 

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2.8               Repayment of Loans.

 

(a)                The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the appropriate Revolving Lender or Term Lender, as the case may be, (i) the then unpaid principal amount of each Revolving Loan of such Revolving Lender made to the Borrower outstanding on the Revolving Termination Date (or on such earlier date on which the Loans become due and payable pursuant to Section 8.1) and (ii) the principal amount of each outstanding Term Loan of such Term Lender made to the Borrower in installments according to the applicable amortization schedule set forth in Section 2.3 (or on such earlier date on which the Loans become due and payable pursuant to Section 8.1). The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans made to the Borrower from time to time outstanding from the date made until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.15.

 

(b)                Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

 

(c)                The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 10.6(b)(iv), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan and each Interest Period applicable thereto, (ii) the amount of any principal, interest and fees, as applicable, due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

(d)                The entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.8(c) shall, to the extent permitted by applicable law, be presumptively correct absent demonstrable error of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of the Administrative Agent or any Lender to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

 

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2.9               Commitment Fees, etc.

 

(a)                The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee, in Dollars, for the period from and including the Closing Date to the last day of the Revolving Commitment Period, computed at the Applicable Commitment Fee Rate on the actual daily amount of the Available Revolving Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on each Fee Payment Date; provided that (i) any commitment fee accrued with respect to any of the Revolving Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and payable by the Borrower prior to such time and (ii) no commitment fee shall accrue on any of the Revolving Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.

 

(b)                The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates as set forth in any fee agreements with the Administrative Agent.

 

(c)                The Borrower agrees to pay the Administrative Agent for the account of each 2018 Delayed Draw Tranche A Term Lender a commitment fee, in Dollars, for the period from and including the Sixth Amendment Effective Date to the last day of the 2018 Delayed Draw Tranche A Term Loan Availability Period, computed at the Applicable Commitment Fee Rate on the actual daily amount of unused 2018 Delayed Draw Tranche A Term Commitments of such Lender during the period for which payment is made, payable quarterly in arrears on each Fee Payment Date; provided that (i) any commitment fee accrued with respect to any of the 2018 Delayed Draw Tranche A Term Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and payable by the Borrower prior to such time and (ii) no commitment fee shall accrue on any of the 2018 Delayed Draw Tranche A Term Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Each payment by the Borrower under this Section 2.9(c) shall be applied to the 2018 Delayed Draw Tranche A Term Lenders on a pro rata basis according to the 2018 Delayed Draw Tranche A Commitment Percentages.

 

2.10             Termination or Reduction of Revolving Commitments.

 

(a)                The Borrower shall have the right, upon not less than two Business Days’ notice to the Administrative Agent, from time to time, to terminate the Revolving Commitments or the 2018 Delayed Draw Tranche A Term Commitments or, from time to time, to reduce the amount of the Revolving Commitments or the 2018 Delayed Draw Tranche A Term Commitments; provided that no such termination or reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Loans made on the effective date thereof, the total Revolving Extensions of Credit would exceed the total Revolving Commitments. Any such partial reduction shall be in an amount equal to $1,000,000, or a whole multiple of $500,000 in excess thereof, and shall reduce permanently the Revolving Commitments or the 2018 Delayed Draw Tranche A Term Commitments, as applicable, then in effect. Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of termination under this Section 2.10 if the notice of such termination stated that such notice was conditioned upon the occurrence or non-occurrence of a transaction or the receipt of a replacement of all, or a portion, of the Revolving Commitments or the 2018 Delayed Draw Tranche A Term Commitments, as applicable, outstanding at such time, in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied.

 

(b)                Upon the incurrence by the Borrower or any of its Restricted Subsidiaries of any Permitted Refinancing Obligations in respect of Revolving Commitments or Revolving Loans, the Revolving Commitments designated by the Borrower to be terminated in connection therewith shall be automatically permanently reduced by an amount equal to 100% of the aggregate principal amount of commitments under such Permitted Refinancing Obligations and any outstanding Revolving Loans in respect of such terminated Revolving Commitments shall be repaid in full.

 

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2.11           Optional Prepayments.

 

(a)                The Borrower may at any time and from time to time prepay the Revolving Loans or any Tranche of Term Loans, in whole or in part, without premium or penalty except as specifically provided in Section 2.11(b), upon irrevocable written notice delivered to the Administrative Agent no later than 12:00 Noon, New York City time, (i) three Business Days prior thereto, in the case of Eurocurrency Loans that are Revolving Loans or Term Loans, (ii) one Business Day prior thereto, in the case of ABR Loans that are Term Loans and (iii) on the date of prepayment, in the case of ABR Loans that are Revolving Loans, which notice shall specify (x) the date and amount of prepayment, (y) whether the prepayment is of Revolving Loans or a Tranche of Term Loans and (z) whether the prepayment is of Eurocurrency Loans or ABR Loans; provided that if a Eurocurrency Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein (provided that any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any transaction or the receipt of proceeds to be used for such payment, in each case specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied), together with (except in the case of Revolving Loans that are ABR Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and of Revolving Loans shall be in an aggregate principal amount of (i) $1,000,000 or a whole multiple of $100,000 in excess thereof (in the case of prepayments of ABR Loans) or (ii) $1,000,000 or a whole multiple of $500,000 in excess thereof (in the case of prepayments of Eurocurrency Loans), and in each case shall be subject to the provisions of Section 2.18.

 

(b)                Any prepayment made on or after the Seventh Amendment Effective Date pursuant to this Section 2.11 or Section 2.12(a) of the Initial Tranche B Term Loans as a result of a Repricing Transaction shall be accompanied by a prepayment fee, which shall initially be 1% of the aggregate principal amount prepaid and shall decline to 0% on and after the six-month anniversary of the Seventh Amendment Effective Date.

 

(c)                Notwithstanding any other provision of this Section 2.11, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Tranche B Term Loans pursuant to Section 2.11(a), exchange such Lender’s portion of the Tranche B Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Tranche B Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).

 

(d)                In connection with any optional prepayments by the Borrower of the Term Loans pursuant to this Section 2.11, such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans.

 

2.12           Mandatory Prepayments.

 

(a)                Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2, other than Permitted Refinancing Obligations in respect of Term Loans) shall be incurred by the Borrower or any Restricted Subsidiary, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied not later than one Business Day after the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 2.12(d).

 

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(b)                Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to the Administrative Agent in respect thereof, such Net Cash Proceeds shall be applied not later than 10 Business Days after such date toward the prepayment of the Term Loans as set forth in Section 2.12(d); provided that, notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (ii) on the date (the “Trigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.

 

(c)                Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending March 31, 2014, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans to the extent accompanied by permanent optional reductions of the Revolving Commitments, and all optional prepayments of Term Loans (x) during such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (y) below) and (y) during the period beginning with the day following the last day of such fiscal year and ending on the Excess Cash Flow Application Date and stated by the Borrower to be prepaid pursuant to this Section 2.12(c)(ii)(y), in each case other than to the extent any such prepayment is funded with the proceeds of long-term Indebtedness, toward the prepayment of Term Loans as set forth in Section 2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten days after the date on which the financial statements referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders.

 

(d)                Amounts to be applied in connection with prepayments pursuant to this Section 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 2.18(b) until paid in full. In connection with any mandatory prepayments by the Borrower of the Term Loans pursuant to this Section 2.12, such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans and with respect to prepayments pursuant to Section 2.12(b) such Net Cash Proceeds may be applied, along with such prepayment of Term Loans (to the extent the Borrower elects, or is required by the terms thereof), to purchase, redeem or repay any Pari Passu Debt, pursuant to the agreements governing such other Indebtedness, on not more than a pro rata basis with respect to such prepayments of Term Loans; provided that if no Lender exercises the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.12(e), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.21. Each prepayment of the Term Loans under this Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.

 

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(e)                Notwithstanding anything to the contrary in Section 2.12 or 2.18, with respect to the amount of any mandatory prepayment pursuant to Section 2.12(b) or (c) that is allocated to Tranche B Term Loans (such amount, the “Tranche B Prepayment Amount”), the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans as provided in paragraph (d) above, on the date specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender (which, for avoidance of doubt, includes each New Term Lender and Extended Lender holding Tranche B Term Loans) a notice (each, a “Tranche B Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender a Tranche B Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay, on the date (each a “Tranche B Mandatory Prepayment Date”) that is ten Business Days after the date of the Tranche B Prepayment Option Notice, the Tranche B Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender’s Tranche B Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. Each Tranche B Term Lender may reject all or a portion of its Tranche B Prepayment Amount by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) five Business Days after such Tranche B Term Lender’s receipt of the Tranche B Prepayment Option Notice (which notice shall specify the principal amount of the Tranche B Prepayment Amount to be rejected by such Lender) (such rejected amounts collectively, the “Declined Tranche B Amount”); provided that any Tranche B Term Lender’s failure to so reject such Tranche B Prepayment Amount shall be deemed an acceptance by such Tranche B Term Lender of such Tranche B Prepayment Option Notice and the amount to be prepaid in respect of Tranche B Term Loans held by such Tranche B Term Lender. On the Tranche B Mandatory Prepayment Date, the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans in respect of which such Lenders have (or are deemed to have) accepted prepayment as described above. If there are (1) any Tranche A Term Loans then outstanding and (2) any Declined Tranche B Amounts in respect of a Tranche B Prepayment Option Notice, on the Business Day following the applicable Tranche B Mandatory Prepayment Date the Borrower shall give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche A Term Lender (which, for avoidance of doubt, includes each New Term Lender and Extended Lender holding Tranche A Term Loans) a notice (each, a “Tranche A Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche A Term Lender a Tranche A Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay, on the date (each a “Tranche A Mandatory Prepayment Date”) that is ten Business Days after the date of the Tranche A Prepayment Option Notice, the Tranche A Term Loans of such Lender by an amount equal to the portion of the Declined Tranche B Amount indicated in such Lender’s Tranche A Prepayment Option Notice as being applicable to such Lender’s Tranche A Term Loans. Each Tranche A Term Lender may reject all or a portion of its Declined Tranche B Amount by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) five Business Days after such Tranche A Term Lender’s receipt of the Tranche A Prepayment Option Notice (which notice shall specify the principal amount of its Declined Tranche B Amount to be rejected by such Lender) (such rejected amounts collectively, the “Declined Tranche A Amount”); provided that any Tranche A Term Lender’s failure to so reject such Declined Tranche B Amount shall be deemed an acceptance by such Tranche A Term Lender of such Tranche A Prepayment Option Notice and the amount to be prepaid in respect of Tranche A Term Loans held by such Tranche A Term Lender. On the Tranche A Mandatory Prepayment Date, the Borrower shall pay to the relevant Tranche A Term Lenders the aggregate amount necessary to prepay that portion of the outstanding Tranche A Term Loans in respect of which such Lenders have (or are deemed to have) accepted prepayment as described above.

 

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(f)                 If, on any date, the aggregate Revolving Extensions of Credit would exceed the aggregate Revolving Commitments (including as a result of any revaluation of the Dollar Equivalent of the L/C Obligations on any Revaluation Date in accordance with Section 1.4), the Borrower shall promptly prepay Revolving Loans in an aggregate principal amount equal to such excess and/or pay to the Administrative Agent an amount of cash and/or Cash Equivalents and/or Permitted Liquid Investments equal to the aggregate principal amount equal to such excess to be held as security for all obligations of the Borrower to the Issuing Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.

 

(g)                Notwithstanding any other provision of this Section 2.12, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Tranche B Term Loans pursuant to Section 2.12(a), exchange such Lender’s portion of the Tranche B Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Tranche B Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).

 

2.13           Conversion and Continuation Options.

 

(a)                The Borrower may elect from time to time to convert Eurocurrency Loans made to the Borrower to ABR Loans by giving the Administrative Agent prior irrevocable written notice of such election no later than 12:00 Noon, New York City time, on the third Business Day preceding the proposed conversion date; provided that if any Eurocurrency Loan is so converted on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21. The Borrower may elect from time to time to convert ABR Loans made to the Borrower to Eurocurrency Loans by giving the Administrative Agent prior irrevocable written notice of such election no later than 12:00 Noon, New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor); provided that no ABR Loan under a particular Facility may be converted into a Eurocurrency Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

(b)                Any Eurocurrency Loan may be continued as such by the Borrower giving irrevocable written notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1 and no later than 12:00 Noon, New York City time, on the third Business Day preceding the proposed continuation date, of the length of the next Interest Period to be applicable to such Loans; provided that if any Eurocurrency Loan is so continued on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21; provided, further, that no Eurocurrency Loan under a particular Facility may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such continuations; and provided, further, that (i) if the Borrower shall fail to give any required notice as described above in this paragraph such Eurocurrency Loans shall be automatically continued as Eurocurrency Loans having an Interest Period of one month’s duration on the last day of such then-expiring Interest Period and (ii) if such continuation is not permitted pursuant to the preceding proviso, such Eurocurrency Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

2.14           Minimum Amounts and Maximum Number of Eurocurrency Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions, continuations and optional prepayments of Eurocurrency Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that (a) after giving effect thereto, the aggregate principal amount of the Eurocurrency Loans comprising each Eurocurrency Tranche shall be equal to a minimum of $1,000,000 or a whole multiple of $500,000 in excess thereof and (b) no more than twelve Eurocurrency Tranches shall be outstanding at any one time.

 

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2.15           Interest Rates and Payment Dates.

 

(a)                Each Eurocurrency Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurocurrency Rate determined for such day plus the Applicable Margin.

 

(b)                Each ABR Loan shall bear interest at a rate per annum equal to ABR plus the Applicable Margin.

 

(c)                (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section 2.15 plus 2% or (y) in the case of Reimbursement Obligations, the rate applicable to ABR Loans under the Revolving Facility plus 2%, and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to ABR Loans under the relevant Facility plus 2% (or, in the case of any such other amounts that do not relate to a particular Facility, the rate then applicable to ABR Loans under the Revolving Facility plus 2%), in each case, with respect to clauses (i) and (ii) above, from the date of such non payment until such amount is paid in full (after as well as before judgment); provided that no amount shall be payable pursuant to this Section 2.15(c) to a Defaulting Lender so long as such Lender shall be a Defaulting Lender; provided further no amounts shall accrue pursuant to this Section 2.15(c) on any overdue Loan, Reimbursement Obligation, commitment fee or other amount payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender.

 

(d)                Interest shall be payable by the Borrower in arrears on each Interest Payment Date; provided that interest accruing pursuant to paragraph (c) of this Section 2.15 shall be payable from time to time on demand.

 

2.16           Computation of Interest and Fees.

 

(a)                Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that interest on ABR Loans shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurocurrency Rate. Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

 

(b)                Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be presumptively correct in the absence of demonstrable error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.15(a) and Section 2.15(b).

 

2.17           Inability to Determine Interest Rate. If prior to the first day of any Interest Period for any Eurocurrency Loan:

 

(a)                the Administrative Agent shall have determined (which determination shall be presumptively correct absent demonstrable error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate for such Interest Period, or

 

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(b)                the Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that by reason of any changes arising after the Closing Date the Eurocurrency Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,

 

the Administrative Agent shall give telecopy notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurocurrency Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Eurocurrency Loans shall be continued as ABR Loans and (z) any outstanding Eurocurrency Loans under the relevant Facility shall be converted, on the last day of the then-current Interest Period with respect thereto, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent (which action the Administrative Agent will take promptly after the conditions giving rise to such notice no longer exist), no further Eurocurrency Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurocurrency Loans.

 

2.18           Pro Rata Treatment and Payments.

 

(a)                Except as expressly otherwise provided herein (including as expressly provided in Sections 2.9, 2.10(b), 2.15(c), 2.19, 2.20, 2.21, 2.22, 2.24, 2.26, 10.5 and 10.7), each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments shall be made pro rata according to the Revolving Percentages of the relevant Lenders other than reductions of Revolving Commitments pursuant to Section 2.24 and payments in respect of any differences in the Applicable Commitment Fee Rate of Extending Lenders pursuant to an Extension Amendment or Lenders in respect of New Revolving Commitments. Except as expressly otherwise provided herein (including as expressly provided in Sections 2.7, 2.15(c), 2.19, 2.20, 2.21, 2.22, 2.24, 2.26, 2.27, 10.5 and 10.7), each payment (other than prepayments) in respect of principal or interest in respect of any Tranche of Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Lenders of such Tranche, pro rata according to the respective amounts then due and owing to such Term Lenders.

 

(b)                Each mandatory prepayment of the Term Loans shall be allocated between the Tranche A Term Facility and the Tranche B Term Facility, pro rata and among the relevant Tranches pro rata, in each case except as affected by the opt-out provision under Section 2.12(e); provided, that at the request of the Borrower, (x) in lieu of such application of the portion allocable to the Tranche A Term Loans on a pro rata basis among all Tranches of Tranche A Term Loans, such prepayment may be applied to any Tranche of Tranche A Term Loans so long as the maturity date of such Tranche of Tranche A Term Loans precedes the maturity date of each other Tranche of Tranche A Term Loans then outstanding or, in the event more than one Tranche of Tranche A Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Tranche A Term Loans then outstanding, to such Tranches on a pro rata basis and (y) in lieu of such application of the portion allocable to the Tranche B Term Loans on a pro rata basis among all Tranches of Tranche B Term Loans, such prepayment may be applied to any Tranche of Tranche B Term Loans so long as the maturity date of such Tranche of Tranche B Term Loans precedes the maturity date of each other Tranche of Tranche B Term Loans then outstanding or, in the event more than one Tranche of Tranche B Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Tranche B Term Loans then outstanding, to such Tranches on a pro rata basis; provided further that in connection with a mandatory prepayment under Section 2.12(a) in connection with the incurrence of Permitted Refinancing Obligations, such prepayment shall be allocated to the Tranches as specified by the Borrower (but to the Loans within such Tranches on a pro rata basis). Each optional prepayment and mandatory prepayment of the Tranche A Term Loans, Tranche B Term Loans or New Term Loans shall be applied to the remaining installments thereof as specified by the Borrower. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.

 

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(c)                Except as expressly otherwise provided herein (including as expressly provided in Sections 2.7, 2.10(b), 2.15(c), 2.19, 2.20, 2.21, 2.22, 2.24, 2.26, 10.5 and 10.7), each payment (including prepayments) to be made by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders other than payments in respect of any differences in the Applicable Margin of Extending Lenders pursuant to an Extension Amendment or Lenders in respect of New Revolving Loans. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender that issued such Letter of Credit.

 

(d)                All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff, deduction or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Office, in immediately available funds. Any payment received by the Administrative Agent after 2:00 P.M., New York City time may be considered received on the next Business Day in the Administrative Agent’s sole discretion. The Administrative Agent shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

 

(e)                Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be presumptively correct in the absence of demonstrable error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall give notice of such fact to the Borrower and the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Defaulting Lender.

 

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(f)                 Unless the Administrative Agent shall have been notified in writing byreceived notice from the Borrower prior to the date ofon which any payment is due to be made by the BorrowerAdministrative Agent for the account of any Lenders or any Issuing Lender (each a “Credit Party”) hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is makinghas made such payment, and the Administrative Agent may, but shall not be required to on such date in accordance herewith and may, in reliance upon such assumption, make availabledistribute to the relevant Lenders their respective pro rata shares of a correspondingapplicable Credit Party the amount due. If such

 

With respect to any payment is not made to the Administrative Agent by the Borrower within three Business Days after such due date,that the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was mademakes for the account of any Credit Party hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each Credit Party severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Credit Party, in immediately available pursuant to the preceding sentence, such amountfunds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the rate per annum equal togreater of the daily average Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Nothing herein shall be deemed to limit the rights

 

A notice of the Administrative Agent to any Credit Party or any Lender against the Borrower with respect to any amount owing under this clause (f) shall be conclusive, absent manifest error.

 

2.19           Requirements of Law.

 

(a)                Except with respect to Taxes, which are addressed in Section 2.20, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority first made, in each case, subsequent to the Closing Date:

 

(i)                 shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Eurocurrency Rate hereunder; or

 

(ii)               shall impose on such Lender any other condition not otherwise contemplated hereunder;

 

and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender reasonably deems to be material, of making, converting into, continuing or maintaining Eurocurrency Loans or issuing or participating in Letters of Credit (in each case hereunder), or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, in Dollars, within thirty Business Days after the Borrower’s receipt of a reasonably detailed invoice therefor (showing with reasonable detail the calculations thereof), any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant to this Section 2.19, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.

 

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(b)                If any Lender shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any entity controlling such Lender with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) from any Governmental Authority first made, in each case, subsequent to the Closing Date shall have the effect of reducing the rate of return on such Lender’s or such entity’s capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or such entity could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such entity’s policies with respect to capital adequacy or liquidity requirements) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a reasonably detailed written request therefor (consistent with the detail provided by such Lender to similarly situated borrowers), the Borrower shall pay to such Lender, in Dollars, such additional amount or amounts as will compensate such Lender or such entity for such reduction.

 

(c)                A certificate prepared in good faith as to any additional amounts payable pursuant to this Section 2.19 submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be presumptively correct in the absence of demonstrable error. Notwithstanding anything to the contrary in this Section 2.19, the Borrower shall not be required to compensate a Lender pursuant to this Section 2.19 for any amounts incurred more than 180 days prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that if the circumstances giving rise to such claim have a retroactive effect, then such 180-day period shall be extended to include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section 2.19 shall survive the termination of this Agreement and the payment of the Obligations. Notwithstanding the foregoing, the Borrower shall not be obligated to make payment to any Lender with respect to penalties, interest and expenses if written demand therefore was not made by such Lender within 180 days from the date on which such Lender makes payment for such penalties, interest and expenses.

 

(d)                Notwithstanding anything in this Section 2.19 to the contrary, solely for purposes of this Section 2.19, (i) the Dodd Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or issued in connection therewith and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to have been enacted, adopted or issued, as applicable, subsequent to the Closing Date.

 

(e)                For purposes of this Section 2.19, the term “Lender” shall include any Issuing Lender.

 

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2.20           Taxes.

 

(a)                Except as otherwise provided in this Agreement or as required by law, all payments made by the Borrower or any Loan Party under this Agreement and the other Loan Documents to the Administrative Agent or any Lender under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes, excluding (i) net income Taxes, net profits Taxes and franchise Taxes (and net worth Taxes and capital Taxes imposed in lieu of net income Taxes) imposed on the Administrative Agent or any Lender (A) by the jurisdiction (or any political subdivision thereof) under the laws of which the Administrative Agent or any Lender (or, in the case of a pass-through entity, any of its beneficial owners) is organized or in which its applicable lending office is located or (B) as a result of a present or former connection between the Administrative Agent or such Lender or beneficial owner and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document), (ii) any branch profits or backup withholding Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which the applicable Borrower or any Loan Party under this Agreement and the other Loan Documents is located or is deemed to be doing business, and (iii) any Taxes imposed by FATCA. If any such non-excluded Taxes (“Non-Excluded Taxes”) or Other Taxes are required to be withheld from any amounts payable by the Borrower or any Loan Party under this Agreement and the other Loan Documents to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after deduction or withholding of all Non-Excluded Taxes and Other Taxes including Non-Excluded Taxes attributable to amounts payable under this Section 2.20(a)) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the Borrower or any Loan Party under this Agreement and the other Loan Documents shall not be required to increase any such amounts payable to or in respect of any Lender with respect to any Non-Excluded Taxes (i) that are attributable to such Lender’s (or, in the case of a pass-through entity, any of its beneficial owners’) failure to comply with the requirements of paragraph (d), (e) or (g), as applicable, of this Section 2.20 or (ii) that are withholding Taxes imposed on amounts payable under this Agreement or the other Loan Documents, unless such Taxes are imposed as a result of a Change in Law occurring after such Lender becomes a party hereto or after the Closing Date, whichever is later, or as a result of any change in facts, occurring after such Lender becomes a party hereto or after the Closing Date, whichever is later, that is not attributable to the Lender, except (in the case of an assignment) to the extent that such Lender’s assignor (if any) was entitled, at the time of such assignment, to receive additional amounts from the Borrower or any Loan Party under this Agreement and the other Loan Documents with respect to such Taxes pursuant to this paragraph.

 

(b)                In addition, the Borrower or any Loan Party under this Agreement and the other Loan Documents shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(c)                Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower and any Loan Party under this Agreement and the other Loan Documents, as promptly as possible thereafter the Borrower shall send to the Administrative Agent for the account of the Administrative Agent or Lender, as the case may be, a certified copy of an original official receipt received by the Borrower showing payment thereof if such receipt is obtainable, or, if not, such other evidence of payment as may reasonably be required by the Administrative Agent or such Lender. If the Borrower or any Loan Party under this Agreement and the other Loan Documents fails to pay any Non-Excluded Taxes or Other Taxes that the Borrower or any Loan Party under this Agreement and the other Loan Documents is required to pay pursuant to this Section 2.20 (or in respect of which the Borrower or any Loan Party under this Agreement and the other Loan Documents would be required to pay increased amounts pursuant to Section 2.20(a) if such Non-Excluded Taxes or Other Taxes were withheld) when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Borrower or any Loan Party under this Agreement and the other Loan Documents shall indemnify the Administrative Agent and the Lenders for any payments by them of such Non-Excluded Taxes or Other Taxes and for any incremental taxes, interest or penalties that become payable by the Administrative Agent or any Lender as a result of any such failure within thirty days after the Lender or the Administrative Agent delivers to the Borrower (with a copy to the Administrative Agent) either (a) a copy of the receipt issued by a Governmental Authority evidencing payment of such Taxes or (b) certificates as to the amount of such payment or liability prepared in good faith.

 

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(d)                Each Lender (and, in the case of a pass-through entity, each of its beneficial owners) that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) (a “Non-US Lender”) shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Borrower and to the Lender from which the related participation shall have been purchased) (i) two accurate and complete copies of IRS Form W 8ECI or W 8BEN, or, (ii) in the case of a Non-US Lender claiming exemption from United States federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement substantially in the form of Exhibit F and two accurate and complete copies of IRS Form W 8BEN, or any subsequent versions or successors to such forms, in each case properly completed and duly executed by such Non-US Lender claiming complete exemption from, or a reduced rate of, United States federal withholding tax on all payments by the Borrower or any Loan Party under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-US Lender on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation). In addition, each Non-US Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-US Lender. Each Non-US Lender shall (i) promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the United States taxing authorities for such purpose) and (ii) take such steps as shall not be disadvantageous to it, in its reasonable judgment, and as may be reasonably necessary (including the re-designation of its lending office pursuant to Section 2.23) to avoid any requirement of applicable laws of any such jurisdiction that the Borrower or any Loan Party make any deduction or withholding for taxes from amounts payable to such Lender. Notwithstanding any other provision of this paragraph, a Non-US Lender shall not be required to deliver any form pursuant to this paragraph that such Non-US Lender is not legally able to deliver.

 

(e)                Each Lender (and, in the case of a Lender that is a non-United States pass-through entity, each of its beneficial owners) that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) (a “US Lender”) shall deliver to the Borrower and the Administrative Agent two accurate and complete copies of IRS Form W-9, or any subsequent versions or successors to such form and certify that such lender is not subject to backup withholding. Such forms shall be delivered by each US Lender on or before the date it becomes a party to this Agreement. In addition, each US Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such US Lender. Each US Lender shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certifications to the Borrower (or any other form of certification adopted by the United States taxing authorities for such purpose).

 

(f)                 If the Administrative Agent or any Lender determines, in good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the Borrower or any Loan Party or with respect to which the Borrower or any Loan Party has paid additional amounts pursuant to this Section 2.20, it shall promptly pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or any Loan Party under this Section 2.20 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority; provided, further, that the Borrower shall not be required to repay to the Administrative Agent or the Lender an amount in excess of the amount paid over by such party to the Borrower pursuant to this Section 2.20. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person. In no event will the Administrative Agent or any Lender be required to pay any amount to the Borrower the payment of which would place the Administrative Agent or such Lender in a less favorable net after-tax position than the Administrative Agent or such Lender would have been in if the additional amounts giving rise to such refund of any Non-Excluded Taxes or Other Taxes had never been paid. The agreements in this Section 2.20 shall survive the termination of this Agreement and the payment of the Obligations.

 

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(g)                If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or Administrative Agent as may be necessary for the Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this subsection (g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

(h)                For purposes of this Section 2.20, the term “Lender” shall include any Issuing Lender.

 

(i)                 For purposes of this Agreement, any reference to IRS Form W 8 BEN shall be deemed to include a reference to IRS Form W 8 BEN-E.

 

2.21           Indemnity. Other than with respect to Taxes, which shall be governed solely by Section 2.20, the Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss or expense (other than lost profits, including the loss of Applicable Margin) that such Lender may actually sustain or incur as a consequence of (a) any failure by the Borrower in making a borrowing of, conversion into or continuation of Eurocurrency Loans after the Borrower has given notice requesting the same in accordance with the provisions of this Agreement, (b) any failure by the Borrower in making any prepayment of or conversion from Eurocurrency Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment, conversion or continuation of Eurocurrency Loans on a day that is not the last day of an Interest Period with respect thereto. A reasonably detailed certificate as to (showing in reasonable detail the calculation of) any amounts payable pursuant to this Section 2.21 submitted to the Borrower by any Lender shall be presumptively correct in the absence of demonstrable error. This covenant shall survive the termination of this Agreement and the payment of the Obligations.

 

2.22           Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof, in each case, first made after the Closing Date, shall make it unlawful for any Lender to make or maintain Eurocurrency Loans as contemplated by this Agreement, such Lender shall promptly give notice thereof (a “Rate Determination Notice”) to the Administrative Agent and the Borrower, and (a) the commitment of such Lender hereunder to make Eurocurrency Loans, continue Eurocurrency Loans as such and convert ABR Loans to Eurocurrency Loans shall be suspended during the period of such illegality and (b) such Lender’s Loans then outstanding as Eurocurrency Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurocurrency Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 2.21.

 

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2.23           Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.19, 2.20(a) or 2.22 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of such event; provided that such designation is made on terms that, in the good faith judgment of such Lender, cause such Lender and its lending office(s) to suffer no material economic, legal or regulatory disadvantage; provided, further, that nothing in this Section 2.23 shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.19, 2.20(a) or 2.22.

 

2.24           Replacement of Lenders. The Borrower shall be permitted to (a) replace with a financial entity or financial entities, or (b) prepay or terminate, without premium or penalty (but subject to Section 2.21), the Loans or Commitments, as applicable, of any Lender or Issuing Lender (each such Lender and Issuing Lender, a “Replaced Lender”) that (i) requests reimbursement for amounts owing or otherwise results in increased costs imposed on the Borrower or on account of which the Borrower is required to pay additional amounts to any Governmental Authority pursuant to Section 2.19, 2.20 or 2.21 (to the extent a request made by a Lender pursuant to the operation of Section 2.21 is materially greater than requests made by other Lenders) or gives a notice of illegality pursuant to Section 2.22, (ii) is a Defaulting Lender, or (iii) has refused to consent to any waiver or amendment with respect to any Loan Document that requires such Lender’s consent and has been consented to by the Required Lenders; provided that, in the case of a replacement pursuant to clause (a) above, (A) such replacement does not conflict with any Requirement of Law, (B) the replacement financial entity or financial entities shall purchase, at par, all Loans and other amounts owing to such Replaced Lender on or prior to the date of replacement (or, in the case of a replacement of an Issuing Lender, comply with Section 9.9(c)), (C) the Borrower shall be liable to such Replaced Lender under Section 2.21 (as though Section 2.21 were applicable) if any Eurocurrency Loan owing to such Replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (D) the replacement financial entity or financial entities, (x) if not already a Lender, shall be reasonably satisfactory to the Administrative Agent to the extent that an assignment to such replacement financial institution of the rights and obligations being acquired by it would otherwise require the consent of the Administrative Agent pursuant to Section 10.6(b)(i)(B) and (y) shall pay (unless otherwise paid by the Borrower) any processing and recordation fee required under Section 10.6(b)(ii)(B), (E) the Administrative Agent and any replacement financial entity or entities shall execute and deliver, and such Replaced Lender shall thereupon be deemed to have executed and delivered, an appropriately completed Assignment and Assumption to effect such substitution (or, in the case of a replacement of an Issuing Lender, customary assignment documentation), (F) the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.19 or 2.20, as the case may be, in respect of any period prior to the date on which such replacement shall be consummated, (G) in respect of a replacement pursuant to clause (iii) above, the replacement financial entity or financial entities shall consent to such amendment or waiver, (H) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the Replaced Lender and (I) if such replacement is in connection with a Repricing Transaction prior to the six-month anniversary of the First Amendment Effective Date, the Borrower or the replacement Lender shall pay the Replaced Lender a fee equal to 1% of the aggregate principal amount of its Initial Tranche B Term Loans required to be assigned pursuant to this Section 2.24. Prepayments pursuant to clause (b) above (i) shall be accompanied by accrued and unpaid interest on the principal amount so prepaid up to the date of such prepayment and (ii) shall not be subject to the provisions of Section 2.18. The termination of the Commitments of any Lender pursuant to clause (b) above shall not be subject to the provisions of Section 2.18. In connection with any such replacement under this Section 2.24, if the Replaced Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Assumption and/or such other documentation and (b) the date as of which all obligations of the Borrower owing to the Replaced Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender to such Replaced Lender, then such Replaced Lender shall be deemed to have executed and delivered such Assignment and Assumption and/or such other documentation as of such date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Assumption and/or such other documentation on behalf of such Replaced Lender, and the Administrative Agent shall record such assignment in the Register.

 

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2.25           Incremental Loans.

 

(a)                In addition to the $400,000,000 in aggregate principal amount of 2018 Delayed Draw Tranche A Term Loans established on the Sixth Amendment Effective Date pursuant to the Sixth Amendment and the $500,000,000 Revolving Commitment Increase established pursuant to the Eighth Amendment, the Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more new term loans (each, a “New Term Loan Commitment”) or increases of existing Term Loans (each, a “Supplemental Term Loan Commitment”) or new revolving commitments (each, a “New Revolving Commitment”) (but no more than three tranches at any time outstanding in the case of revolving commitments) or increases of existing Revolving Commitments (each, a “Revolving Commitment Increase”; together with any New Term Loan Commitments, any Supplemental Term Loan Commitments and any Revolving Commitment Increase, the “New Loan Commitments”) hereunder, in an aggregate amount for all such New Loan Commitments not in excess of, at the time the respective New Loan Commitments become effective, (x) the Maximum Incremental Facility Amount and (y) an additional amount not to exceed, together with (i) all other New Loan Commitments established pursuant to this Section 2.25(a)(y) and (ii) Additional Obligations incurred pursuant to Section 7.2(p), the greater of $627,000,000909,000,000 or 100% of Consolidated EBITDA, as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1, in the aggregate. For purposes of determining compliance with the foregoing sentence of this Section 2.25(a), in the event that New Loan Commitments can be incurred under either clause (x) or (y) of such sentence, the Borrower shall, in its sole discretion, classify such New Loan Commitments (or any portion thereof) and may include the amount of such New Loan Commitments in one or both of such clauses; provided that, at the Borrower’s option, capacity to incur New Loan Commitments pursuant to clause (x) shall be deemed to be utilized prior to any utilization of clause (y) to establish New Loan Commitments. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent; provided that any Lender offered or approached to provide all or a portion of any New Loan Commitments may elect or decline, in its sole discretion, to provide such New Loan Commitments.

 

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(b)                Such New Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments and the making of any New Loans pursuant thereto and any transaction consummated in connection therewith (or, in the case of an incurrence of New Loans necessary or advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Acquisition, no Default or Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into (or, if applicable, the date of delivery of an irrevocable notice or declaration of such Limited Condition Acquisition)); (ii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1 at the effective time of such commitments; (iii) the proceeds of any New Loans shall be used, at the discretion of the Borrower, for any purpose not prohibited by this Agreement; (iv) the New Loans shall be secured by the Collateral on a pari passu or, at the Borrower’s option, junior basis (so long as any such New Loan Commitments (and related Obligations) are subject to an Intercreditor Agreement or an Other Intercreditor Agreement) and shall benefit ratably from the guarantees under the Guarantee and Collateral Agreement; (v) in the case of New Loans that are term loans (“New Term Loans”), the maturity date thereof shall not be earlier than the Latest Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the Latest Maturing Tranche A Term Loans (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Latest Maturity Date or the weighted average life to maturity of the Latest Maturing Tranche A Term Loans, as applicable); (vi) in the case of any New Loans that are revolving loans or commitments (“New Revolving Loans”) the maturity date or commitment termination date thereof shall not be earlier than the Revolving Termination Date and such New Revolving Loans shall not require any scheduled commitment reductions prior to the Revolving Termination Date; (vii) the New Revolving Loans shall share ratably in any mandatory prepayments or utilizations of the existing Revolving Loans; (viii) subject to Section 2.24, commitment reductions shall apply ratably to the Revolving Commitments and any commitments in respect of New Revolving Loans; provided that the Borrower may reduce 100% of the commitments of any revolving facility on a non-pro rata basis with the commitments under any other revolving facility hereunder; provided further that at the request of the Borrower, in lieu of such application on a pro rata basis among all Revolving Commitments, such reduction may be applied to any Revolving Commitments so long as the termination date of such Revolving Commitments precedes the termination date of each other Tranche of Revolving Commitments then outstanding or, in the event more than one Tranche of Revolving Commitments shall have an identical termination date that precedes the termination date of each other Tranche of Revolving Commitments then outstanding, to such Tranches on a pro rata basis; (ix) all terms and documentation with respect to any New Loans which differ from those with respect to the Loans under the applicable Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent permitted by clauses (iv), (v) and (vi) above and the last sentence of this paragraph and, with respect to the 2018 Delayed Draw Tranche A Term Commitments, except to the extent set forth in the Sixth Amendment); (x) such New Loans or New Loan Commitments (other than Supplemental Term Loan Commitments and Revolving Commitment Increases) shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; (xi) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Joinder Agreement, Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under, such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the New Loan Commitments and the extensions of credit thereunder and (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby; and (xii) if the initial “spread” (for purposes of this Section 2.25, the “spread” with respect to any Term Loan shall be calculated as the sum of the Eurodollar Loan margin on the relevant Term Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable Facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to any New Term Loan, made on or prior to the 24-month anniversary of the Third Amendment Effective Date, with annual amortization of less than 5.0% exceeds the spread then in effect with respect to the Initial Tranche B Term Loans by more than 0.50%, the Applicable Margin relating to the Initial Tranche B Term Loans shall be adjusted so that the spread relating to such New Term Loans does not exceed the spread applicable to the Initial Tranche B Term Loans by more than 0.50%; provided that if such New Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Tranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Tranche B Term Loans shall be increased by such amount. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Loan Commitments shall be determined by the Borrower and the applicable New Lenders and shall be set forth in the applicable Joinder Agreement.

 

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(c)            On any Increased Amount Date on which any New Loan Commitment become effective, subject to the foregoing terms and conditions, each lender with a New Loan Commitment (each, a “New Lender”) shall become a Lender hereunder with respect to such New Loan Commitment.

 

(d)            For purposes of this Agreement, any New Loans or New Loan Commitments shall be deemed to be Term Loans, Revolving Loans or Revolving Commitments, as applicable. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.25.

 

(e)            Supplemental Term Loan Commitments and Revolving Commitment Increases shall become commitments under this Agreement pursuant to (x) in the case of the 2016 Supplemental Tranche A Term Loans, the Third Amendment, (y) in the case of the 2018 Delayed Draw Tranche A Term Commitments, the Sixth Amendment or (z) otherwise, a supplement specifying the Term Loan Tranche or Revolving Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit L-1 (the “Increase Supplement”) or by each New Lender substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement, each New Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or the commitments made pursuant to such Revolving Commitment Increase shall be Revolving Commitments, as applicable.

 

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2.26          Extension of Term Loans and Revolving Commitments.

 

(a)            The Borrower may at any time and from time to time request that all or a portion of the (i) Term Loans and unused Commitments in respect thereof, if any, of one or more Tranches existing at the time of such request (each, an “Existing Term Tranche”, and the Term Loans and unused Commitments in respect thereof, if any, of such Tranche, the “Existing Term Loans”) or (ii) Revolving Commitments of one or more Tranches existing at the time of such request (each, an “Existing Revolving Tranche”, and together with the Existing Term Tranches, each an “Existing Tranche”, and the Revolving Commitments of such Existing Revolving Tranche, the “Existing Revolving Loans”, and together with the Existing Term Loans, the “Existing Loans”), in each case, be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of any Existing Tranche (any such Existing Tranche which has been so extended, an “Extended Term Tranche” or “Extended Revolving Tranche”, as applicable, and each an “Extended Tranche”, and the Term Loans and unused Commitments in respect thereof, if any, or Revolving Commitments, as applicable, of such Extended Tranches, the “Extended Term Loans” or “Extended Revolving Commitments”, as applicable, and collectively, the “Extended Loans”) and to provide for other terms consistent with this Section 2.26; provided that (i) any such request shall be made by the Borrower to all Lenders with Term Loans and unused Commitments in respect thereof, if any, or Revolving Commitments, as applicable, with a like maturity date (whether under one or more Tranches) on a pro rata basis (based on the aggregate outstanding principal amount of the applicable Term Loans and unused Commitments in respect thereof, if any, or the applicable Revolving Commitments) and (ii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower in its sole discretion. In order to establish any Extended Tranche, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Tranche) (an “Extension Request”) setting forth the proposed terms of the Extended Tranche to be established, which terms shall be substantially similar to those applicable to the Existing Tranche from which they are to be extended (the “Specified Existing Tranche”), except (x) all or any of the final maturity dates of such Extended Tranches may be delayed to later dates than the final maturity dates of the Specified Existing Tranche, (y) (A) the interest margins with respect to the Extended Tranche may be higher or lower than the interest margins for the Specified Existing Tranche and/or (B) additional fees may be payable to the Lenders providing such Extended Tranche in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) in the case of an Extended Term Tranche, so long as the weighted average life to maturity of such Extended Tranche would be no shorter than the remaining weighted average life to maturity of the Specified Existing Tranche, amortization rates with respect to the Extended Term Tranche may be higher or lower than the amortization rates for the Specified Existing Tranche, in each case to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.26 or otherwise, assignments and participations of Extended Tranches shall be governed by the same or, at the Borrower’s discretion, more restrictive assignment and participation provisions applicable to Tranche A Term Loans, Tranche B Term Loans or Revolving Commitments, as applicable, set forth in Section 10.6. No Lender shall have any obligation to agree to have any of its Existing Loans converted into an Extended Tranche pursuant to any Extension Request. Any Extended Tranche shall constitute a separate Tranche of Loans from the Specified Existing Tranches and from any other Existing Tranches (together with any other Extended Tranches so established on such date).

 

(b)            The Borrower shall provide the applicable Extension Request at least 10 Business Days (or such shorter period as the Administrative Agent may agree in its reasonable discretion) prior to the date on which Lenders under the applicable Existing Tranche or Existing Tranches are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Specified Existing Tranche converted into an Extended Tranche shall notify the Administrative Agent (each, an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Specified Existing Tranche that it has elected to convert into an Extended Tranche. In the event that the aggregate amount of the Specified Existing Tranche subject to Extension Elections exceeds the amount of Extended Tranches requested pursuant to the Extension Request, the Specified Existing Tranches subject to Extension Elections shall be converted to Extended Tranches on a pro rata basis based on the amount of Specified Existing Tranches included in each such Extension Election. In connection with any extension of Loans pursuant to this Section 2.26 (each, an “Extension”), the Borrower shall agree to such procedures regarding timing, rounding and other administrative adjustments to ensure reasonable administrative management of the credit facilities hereunder after such Extension, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.26. The Borrower may amend, revoke or replace an Extension Request pursuant to procedures reasonably acceptable to the Administrative Agent at any time prior to the date (the “Extension Request Deadline”) on which Lenders under the applicable Existing Term Tranches or Existing Revolving Tranches are requested to respond to the Extension Request. Any Lender may revoke an Extension Election at any time prior to 5:00 p.m. on the date that is two (2) Business Days prior to the Extension Request Deadline, at which point the Extension Election becomes irrevocable (unless otherwise agreed by Borrower). The revocation of an Extension Election prior to the Extension Request Deadline shall not prejudice any Lender’s right to submit a new Extension Election prior to the Extension Request Deadline.

 

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(c)            Extended Tranches shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which may include amendments to provisions related to maturity, interest margins or fees referenced in clauses (x) and (y) of Section 2.26(a), or, in the case of Extended Term Tranches, amortization rates referenced in clause (z) of Section 2.26(a), and which, in each case, except to the extent expressly contemplated by the last sentence of this Section 2.26(c) and notwithstanding anything to the contrary set forth in Section 10.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Tranches established thereby) executed by the Loan Parties, the Administrative Agent, and the Extending Lenders. Subject to the requirements of this Section 2.26 and without limiting the generality or applicability of Section 10.1 to any Section 2.26 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.26 Additional Amendment”) to this Agreement and the other Loan Documents; provided that such Section 2.26 Additional Amendments do not become effective prior to the time that such Section 2.26 Additional Amendments have been consented to (including pursuant to consents applicable to holders of any Extended Tranches provided for in any Extension Amendment) by such of the Lenders, Loan Parties and other parties (if any) as may be required in order for such Section 2.26 Additional Amendments to become effective in accordance with Section 10.1; provided, further, that no Extension Amendment may provide for (i) any Extended Tranche to be secured by any Collateral or other assets of any Loan Party that does not also secure the Existing Tranches or be guaranteed by any Person other than the Guarantors and (ii) so long as any Existing Term Tranches are outstanding, any mandatory or voluntary prepayment provisions that do not also apply to the Existing Term Tranches (other than Existing Term Tranches secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for Existing Term Tranches than such Extended Term Tranches as contemplated by Section 2.12). Notwithstanding anything to the contrary in Section 10.1, any such Extension Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.26; provided that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any Section 2.26 Additional Amendment.

 

(d)            Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Tranche is converted to extend the related scheduled maturity date(s) in accordance with Section 2.26(a) above (an “Extension Date”), in the case of the Specified Existing Tranche of each Extending Lender, the aggregate principal amount of such Specified Existing Tranche shall be deemed reduced by an amount equal to the aggregate principal amount of the Extended Tranche so converted by such Lender on such date, and such Extended Tranches shall be established as a separate Tranche from the Specified Existing Tranche and from any other Existing Tranches (together with any other Extended Tranches so established on such date).

 

(e)            If, in connection with any proposed Extension Amendment, any Lender declines to consent to the applicable extension on the terms and by the deadline set forth in the applicable Extension Request (each such other Lender, a “Non-Extending Lender”) then the Borrower may, on notice to the Administrative Agent and the Non-Extending Lender, replace such Non-Extending Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 10.6 (with the assignment fee and any other costs and expenses to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement to one or more assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender; provided, further, that the applicable assignee shall have agreed to provide Extended Loans on the terms set forth in such Extension Amendment; provided, further, that all obligations of the Borrower owing to the Non-Extending Lender relating to the Existing Loans so assigned (including pursuant to Section 2.21 (as though Section 2.21 were applicable)) shall be paid in full by the assignee Lender to such Non-Extending Lender concurrently with such Assignment and Assumption. In connection with any such replacement under this Section 2.26, if the Non-Extending Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption by the later of (A) the date on which the replacement Lender executes and delivers such Assignment and Assumption and (B) the date as of which all obligations of the Borrower owing to the Non-Extending Lender relating to the Existing Loans so assigned shall be paid in full by the assignee Lender to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and Assumption as of such date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Assumption on behalf of such Non-Extending Lender.

 

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(f)             Following any Extension Date, with the written consent of the Borrower, any Non-Extending Lender may elect to have all or a portion of its Existing Loans deemed to be an Extended Loan under the applicable Extended Tranche on any date (each date a “Designation Date”) prior to the maturity date of such Extended Tranche; provided that such Lender shall have provided written notice to the Borrower and the Administrative Agent at least 10 Business Days prior to such Designation Date (or such shorter period as the Administrative Agent may agree in its reasonable discretion); provided, further, that no greater amount shall be paid by or on behalf of the Borrower or any of its Affiliates to any such Non-Extending Lender as consideration for its extension into such Extended Tranche than was paid to any Extended Lender as consideration for its Extension into such Extended Tranche. Following a Designation Date, the Existing Loans held by such Lender so elected to be extended will be deemed to be Extended Loans of the applicable Extended Tranche, and any Existing Loans held by such Lender not elected to be extended, if any, shall continue to be “Existing Loans” of the applicable Tranche.

 

(g)            With respect to all Extensions consummated by the Borrower pursuant to this Section 2.26, (i) such Extensions shall not constitute optional or mandatory payments or prepayments for purposes of Sections 2.11 and 2.12 and (ii) no Extension Request is required to be in any minimum amount or any minimum increment, provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Request in the Borrower’s sole discretion and may be waived by the Borrower) of Existing Loans of any or all applicable Tranches be extended. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.26 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans on such terms as may be set forth in the relevant Extension Request) and hereby waive the requirements of any provision of this Agreement (including Sections 2.8, 2.11 and 2.12) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.26.

 

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2.27          Permitted Debt Exchanges.

 

(a)            Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt Exchange Offer”) made from time to time by the Borrower to all Lenders (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act)) with outstanding Term Loans of a particular Tranche, as selected by the Borrower, the Borrower may from time to time following the Closing Date consummate one or more exchanges of Term Loans of such Tranche for Additional Obligations in the form of notes (such notes, “Permitted Debt Exchange Notes,” and each such exchange a “Permitted Debt Exchange”), so long as the following conditions are satisfied: (i) the aggregate principal amount (calculated on the face amount thereof) of Term Loans exchanged shall equal the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange Notes issued in exchange for such Term Loans, (ii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans exchanged by the Borrower pursuant to any Permitted Debt Exchange shall automatically be cancelled and retired by the Borrower on the date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), (iii) if the aggregate principal amount of all Term Loans (calculated on the face amount thereof) tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount of the applicable Tranche actually held by it) shall exceed the maximum aggregate principal amount of Term Loans offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered, (iv) each such Permitted Debt Exchange Offer shall be made on a pro rata basis to the Lenders (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act)) based on their respective aggregate principal amounts of outstanding Term Loans of the applicable Tranche, (v) all documentation in respect of such Permitted Debt Exchange shall be consistent with the foregoing, and all written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing and made in consultation with the Administrative Agent, and (vi) any applicable Minimum Exchange Tender Condition shall be satisfied. No Lender shall have any obligation to agree to have any of its Term Loans exchanged for Permitted Debt Exchange Notes pursuant to any Permitted Debt Exchange Offer.

 

(b)            With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.27, (i) such Permitted Debt Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.11 and 2.12 and (ii) such Permitted Debt Exchange Offer shall be made for not less than $25,000,000 in aggregate principal amount of Term Loans, provided that, subject to the foregoing clause (ii), the Borrower may at its election specify as a condition (a “Minimum Exchange Tender Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans be tendered.

 

(c)            In connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least 10 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this Section 2.27 and without conflict with Section 2.27(d); provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five Business Days following the date on which the Permitted Debt Exchange Offer is made.

 

(d)            The Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent nor any Lender assumes any responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted Debt Exchange (other than the Borrower’s reliance on any certificate delivered by a Lender pursuant to Section 2.27(a) above for which such Lender shall bear sole responsibility) and (y) each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to which such Lender may be subject under the Exchange Act.

 

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SECTION 3.          LETTERS OF CREDIT

 

3.1            L/C Commitment.

 

(a)            Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees, in the case of Credit Suisse AG, to continue under this Agreement for the account of the Borrower the Existing Letters of Credit issued by it until the expiration or earlier termination thereof and, in the case of each other Issuing Lender, to issue letters of credit (the letters of credit issued on and after the Closing Date pursuant to this Section 3, together with the Existing Letters of Credit, collectively, the “Letters of Credit”) under the Revolving Commitments for the account of the Borrower or any Guarantor on any Business Day during the Revolving Commitment Period in such form as may be approved from time to time by such Issuing Lender; provided that no Issuing Lender shall have any obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) any Revolving Lender’s Available Revolving Commitment or the aggregate amount of the Available Revolving Commitments would be less than zero. Each Letter of Credit shall (i) be denominated in Dollars or any Permitted Foreign Currency and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is three Business Days prior to the Revolving Termination Date (unless cash collateralized or backstopped, in each case in a manner agreed to by the Borrower and the Issuing Lender); provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above).

 

(b)            No Issuing Lender shall at any time be obligated to issue any Letter of Credit if such issuance would (i) conflict with, or cause such Issuing Lender to exceed any limits imposed by, any applicable Requirement of Law, or if such Requirement of Law would impose upon such Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and is not otherwise reimbursable to it by the Borrower hereunder and which such Issuing Lender in good faith deems material to it or (ii) violate one or more policies of such Issuing Lender applicable generally to the issuance of letters of credit for the account of similarly situated borrowers.

 

3.2            Procedure for Issuance of Letter of Credit. The Borrower may from time to time request that the relevant Issuing Lender issue a Letter of Credit (or amend, renew or extend an outstanding Letter of Credit) by delivering to such Issuing Lender at its address for notices specified to the Borrower by such Issuing Lender an Application therefor, with a copy to the Administrative Agent, completed to the reasonable satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such Issuing Lender may reasonably request. Upon receipt of any Application, the relevant Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue (or amend, renew or extend, as the case may be) the Letter of Credit requested thereby (but in no event without the consent of the applicable Issuing Lender shall any Issuing Lender be required to issue (or amend, renew or extend, as the case may be) any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit (or such amendment, renewal or extension, as the case may be) to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower. Such Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower promptly following the issuance (or such amendment, renewal or extension, as the case may be) thereof. Each Issuing Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the relevant Revolving Lenders, notice of the issuance (or such amendment, renewal or extension, as the case may be) of each Letter of Credit issued by it (including the amount thereof).

 

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3.3            Fees and Other Charges.

 

(a)            The Borrower will pay a fee, in Dollars, on each outstanding Letter of Credit requested by it, at a per annum rate equal to the Applicable Margin then in effect with respect to Eurocurrency Loans under the Revolving Facility (minus the fronting fee referred to below), on the Dollar Equivalent of the face amount of such Letter of Credit, which fee shall be shared ratably among the Revolving Lenders and payable quarterly in arrears on each Fee Payment Date after the issuance date; provided that, with respect to any Defaulting Lender, such Lender’s ratable share of any letter of credit fee accrued on the aggregate amount available to be drawn on any outstanding Letters of Credit during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Lender’s ratable share of any letter of credit fee shall otherwise have been due and payable by the Borrower prior to such time; provided further that any Defaulting Lender’s ratable share of any letter of credit fee accrued on the aggregate amount available to be drawn on any outstanding Letters of Credit shall accrue for the account of each Non-Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit which has been reallocated to such Non-Defaulting Lender pursuant to Section 3.4(d) and with respect to any L/C Shortfall either (i) if the Borrower has paid to the Administrative Agent, an amount of cash and/or Cash Equivalents and/or Permitted Liquid Investments equal to the amount of the L/C Shortfall to be held as security for all obligations of the Borrower to the Issuing Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent, for the account of the Borrower or (ii) otherwise, for the account of the Issuing Lenders, in each case so long as such Lender shall be a Defaulting Lender. In addition, the Borrower shall pay to each Issuing Lender for its own account a fronting fee, in Dollars, on the Dollar Equivalent of the aggregate face amount of all outstanding Letters of Credit issued by it to the Borrower separately agreed to by the Borrower and such Issuing Lender (but in any event not to exceed 0.25% per annum), payable quarterly in arrears on each Fee Payment Date after the issuance date.

 

(b)            In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender for costs and expenses agreed by the Borrower and such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit requested by the Borrower.

 

3.4            L/C Participations.

 

(a)            Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce such Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued by it and the amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit issued by it for which such Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay, in Dollars, to the Administrative Agent for the account of such Issuing Lender upon demand an amount equal to such L/C Participant’s Revolving Percentage of the Dollar Equivalent of the amount of such draft, or any part thereof, that is not so reimbursed (“L/C Disbursements”); provided that, nothing in this paragraph shall relieve the Issuing Lender of any liability resulting from the gross negligence or willful misconduct of the Issuing Lender. Each L/C Participant’s obligation to pay such amount shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C Participant may have against any Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the financial condition of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other L/C Participant or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

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(b)            If any amount required to be paid by any L/C Participant to the Administrative Agent for the account of any Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit is paid to the Administrative Agent for the account of such Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to the Administrative Agent for the account of such Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made available to the Administrative Agent for the account of the relevant Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to ABR Loans under the Revolving Facility. A certificate of the relevant Issuing Lender submitted to any relevant L/C Participant with respect to any amounts owing under this Section 3.4 shall be presumptively correct in the absence of demonstrable error.

 

(c)            Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section 3.4(a), such Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender will distribute to the Administrative Agent for the account of such L/C Participant its pro rata share thereof; provided, however, that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return to the Administrative Agent for the account of such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.

 

(d)            Notwithstanding anything to the contrary contained in this Agreement, in the event an L/C Participant becomes a Defaulting Lender, then such Defaulting Lender’s Revolving Percentage in all outstanding Letters of Credit will automatically be reallocated among the L/C Participants that are Non-Defaulting Lenders pro rata in accordance with each Non-Defaulting Lender’s Revolving Percentage (calculated without regard to the Revolving Commitment of the Defaulting Lender), but only to the extent that such reallocation does not cause the Revolving Extensions of Credit of any Non-Defaulting Lender to exceed the Revolving Commitment of such Non-Defaulting Lender. If such reallocation cannot, or can only partially be effected, the Borrower shall, within five Business Days after written notice from the Administrative Agent, pay to the Administrative Agent, an amount of cash and/or Cash Equivalents and/or Permitted Liquid Investments equal to such Defaulting Lender’s Revolving Percentage (calculated as in effect immediately prior to it becoming a Defaulting Lender) of the L/C Obligations (after giving effect to any partial reallocation pursuant to the first sentence of this Section 3.4(d)) to be held as security for all obligations of the Borrower to the Issuing Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent. So long as there is a Defaulting Lender, an Issuing Lender shall not be required to issue any Letter of Credit where the sum of the Non-Defaulting Lenders’ Revolving Percentage, as applicable, of the outstanding Revolving Loans and their participations in Letters of Credit after giving effect to any such requested Letter of Credit would exceed (such excess, the “L/C Shortfall”) the aggregate Revolving Commitments of the Non-Defaulting Lenders, unless the Borrower shall pay to the Administrative Agent, an amount of cash and/or Cash Equivalents and/or Permitted Liquid Investments equal to the amount of the L/C Shortfall, such cash and/or Cash Equivalents and/or Permitted Liquid Investments to be held as security for all obligations of the Borrower to the Issuing Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.

 

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(e)            If, on any date, the L/C Obligations would exceed 105% of the L/C Commitment (including as a result of any revaluation of the Dollar Equivalent of the L/C Obligations on any Revaluation Date in accordance with Section 1.4), the Borrower shall promptly pay to the Administrative Agent an amount of cash and/or Cash Equivalents and/or Permitted Liquid Investments equal to the amount by which the L/C Obligations exceed the L/C Commitment, such cash and/or Cash Equivalents and/or Permitted Liquid Investments to be held as security for all obligations of the Borrower to the Issuing Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.

 

3.5            Reimbursement Obligation of the Borrower. The Borrower agrees to reimburse each Issuing Lender on the Business Day following the date on which such Issuing Lender notifies the Borrower of the date and amount of a draft presented under any Letter of Credit issued by such Issuing Lender at the Borrower’s request and paid by such Issuing Lender for the amount of (a) such draft so paid and (b) any Non-Excluded Taxes and Other Taxes, fees, charges or other costs or expenses reasonably incurred by such Issuing Lender in connection with such payment (the amounts described in the foregoing clauses (a) and (b) in respect of any drawing, collectively, the “Payment Amount”). Each such payment shall be made to such Issuing Lender at its address for notices specified to the Borrower in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on which the relevant draft is paid until payment in full at a rate equal to (i) until the second Business Day next succeeding the date of the relevant notice, the rate applicable to ABR Loans under the Revolving Facility and (ii) thereafter, the rate set forth in Section 2.15(c). In the case of any such reimbursement in Dollars with respect to a Letter of Credit denominated in a Permitted Foreign Currency, the applicable Issuing Lender shall notify the Borrower of the Dollar Equivalent of the amount of the draft so paid promptly following the determination thereof.

 

3.6            Obligations Absolute. The Borrower’s obligations under this Section 3 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrower’s Reimbursement Obligations under Section 3.5 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee, or any other events or circumstances that, pursuant to applicable law or the applicable customs and practices promulgated by the International Chamber of Commerce, are not within the responsibility of such Issuing Lender, except for errors, omissions, interruptions or delays resulting from the gross negligence or willful misconduct of such Issuing Lender or its employees or agents. No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors, omissions, interruptions or delays resulting from the gross negligence or willful misconduct of such Issuing Lender or its employees or agents. The Borrower agrees that any action taken or omitted by any Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the Uniform Commercial Code of the State of New York, shall be binding on the Borrower and shall not result in any liability of such Issuing Lender to the Borrower.

 

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3.7            Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the relevant Issuing Lender shall promptly notify the Borrower of the date and amount thereof. The responsibility of such Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter of Credit issued by such Issuing Lender shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit.

 

3.8            Applications. To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Agreement or any other Loan Document, the provisions of this Agreement or such other Loan Document shall apply.

 

3.9            Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable Issuing Lender and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (a) the rules of the ISP shall apply to each standby Letter of Credit, and (b) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.

 

SECTION 4.         REPRESENTATIONS AND WARRANTIES

 

To induce the Agents and the Lenders to enter into this Agreement and to make the Loans and issue or participate in the Letters of Credit, the Borrower hereby represents and warrants (as to itself and each of its Restricted Subsidiaries) to the Agents and each Lender, which representations and warranties shall be deemed made on the Closing Date and on the date of each borrowing of Loans or issuance, extension or renewal of a Letter of Credit hereunder that:

 

4.1            Financial Condition. The audited consolidated balance sheet of the Company and its Subsidiaries as at March 31, 2010, March 31, 2011 and March 31, 2012, and the related statements of income and of cash flows for the fiscal years ended on such dates, reported on by and accompanied by an unqualified report from Ernst & Young LLP, present fairly in all material respects the financial condition of the Company and its Subsidiaries, as at such date, and the results of, their operations, their cash flows and their changes in stockholders’ equity for the respective fiscal years then ended. All such financial statements, including the related schedules and notes thereto and year end adjustments, have been prepared in accordance with GAAP (except as otherwise noted therein).

 

4.2            No Change. Since March 31, 2012 there has been no event, development or circumstance that has had or would reasonably be expected to have a Material Adverse Effect.

 

4.3            Existence; Compliance with Law. Except as set forth in Schedule 4.3, the Borrower and its Restricted Subsidiaries (other than any Immaterial Subsidiaries) (a) (i) is duly organized (or incorporated), validly existing and in good standing (or, only where applicable, the equivalent status in any foreign jurisdiction) under the laws of the jurisdiction of its organization or incorporation, except in each case (other than with respect to the Borrower), to the extent such failure to do so would not reasonably be expected to have a Material Adverse Effect, (ii) has the corporate or organizational power and authority, and the legal right, to own and operate its Property, to lease the Property it operates as lessee and to conduct the business in which it is currently engaged, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect and (iii) is duly qualified as a foreign corporation or limited liability company and in good standing (where such concept is relevant) under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification except, in each case, to the extent that the failure to be so qualified or in good standing (where such concept is relevant) would not have a Material Adverse Effect and (b) is in compliance with all Requirements of Law except to the extent that any such failure to comply therewith would not have a Material Adverse Effect.

 

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4.4            Corporate Power; Authorization; Enforceable Obligations.

 

(a)            Each Loan Party has the corporate power and authority to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to borrow or have Letters of Credit issued hereunder, except in each case (other than with respect to the Borrower), to the extent such failure to do so would not reasonably be expected to have a Material Adverse Effect. Each Loan Party has taken all necessary corporate or other action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement, except in each case (other than with respect to the Borrower), to the extent such failure to do so would not reasonably be expected to have a Material Adverse Effect.

 

(b)            No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority is required in connection with the extensions of credit hereunder or the execution, delivery, performance, validity or enforceability of this Agreement or any of the other Loan Documents, except (i) consents, authorizations, filings and notices described in Schedule 4.4, which consents, authorizations, filings and notices have been obtained or made and are in full force and effect or the failure to obtain which would not reasonably be expected to have a Material Adverse Effect and (ii) the filings referred to in Section 4.17.

 

(c)            Each Loan Document has been duly executed and delivered on behalf of each Loan Party that is a party thereto. This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against each such Loan Party in accordance with its terms (provided that, with respect to the creation and perfection of security interests with respect to the Capital Stock of Foreign Subsidiaries, only to the extent enforceability of such obligation with respect to which Capital Stock is governed by the Uniform Commercial Code), except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law) and the implied covenants of good faith and fair dealing.

 

4.5            No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents by the Loan Parties thereto, the issuance of Letters of Credit, the borrowings hereunder and the use of the proceeds thereof will not (a) violate the organizational or governing documents of (i) the Borrower or (ii) except as would not reasonably be expected to have a Material Adverse Effect, any other Loan Party, (b) except as would not reasonably be expected to have a Material Adverse Effect, violate any Requirement of Law binding on the Borrower or any of its Restricted Subsidiaries or any Contractual Obligation of the Borrower or any of its Restricted Subsidiaries or (c) except as would not have a Material Adverse Effect, result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens permitted by Section 7.3).

 

4.6            No Material Litigation. Except as set forth in Schedule 4.6, no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened against the Borrower or any of its Restricted Subsidiaries or against any of their Properties which, taken as a whole, would reasonably be expected to have a Material Adverse Effect.

 

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4.7            No Default. No Default or Event of Default has occurred and is continuing.

 

4.8            Ownership of Property; Liens. Except as set forth in Schedule 4.8A, each of the Borrower and its Restricted Subsidiaries has good title in fee simple to, or a valid leasehold interest in, all its Real Property, and good title to, or a valid leasehold interest in, all its other Property (other than Intellectual Property), in each case, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, and none of such Property is subject to any Lien except as permitted by the Loan Documents. Schedule 4.8B lists all Real Property which is owned or leased by any Loan Party as of the Closing Date.

 

4.9            Intellectual Property. Each of the Borrower and its Restricted Subsidiaries owns, or has a valid license to use, all Intellectual Property necessary for the conduct of its business as currently conducted free and clear of all Liens except as permitted by the Loan Documents, other than Intellectual Property owned by a Special Purpose Entity, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. To the Borrower’s knowledge, no holding, injunction, decision or judgment has been rendered by any Governmental Authority against the Borrower or any Restricted Subsidiary and neither the Borrower nor any of its Restricted Subsidiaries has entered into any settlement stipulation or other agreement (except license agreements in the ordinary course of business) which would limit, cancel or question the validity of the Borrower’s or any Restricted Subsidiary’s rights in, any Intellectual Property in any respect that would reasonably be expected to have a Material Adverse Effect. To Borrower’s knowledge, no claim has been asserted or threatened or is pending by any Person challenging or questioning the use by the Borrower or its Restricted Subsidiaries of any Intellectual Property owned by the Borrower or any of its Restricted Subsidiaries or the validity or effectiveness of any Intellectual Property, except as would not reasonably be expected to have a Material Adverse Effect. To the Borrower’s knowledge, the use of Intellectual Property by the Borrower and its Restricted Subsidiaries does not infringe on the rights of any Person in a manner that would reasonably be expected to have a Material Adverse Effect. The Borrower and its Restricted Subsidiaries take all reasonable actions that in the exercise of their reasonable business judgment should be taken to protect their Intellectual Property, including Intellectual Property that is confidential in nature, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

 

4.10          Taxes. Each of the Borrower and its Restricted Subsidiaries (i) has filed or caused to be filed all federal, state, provincial and other tax returns that are required to be filed and (ii) has paid all taxes shown to be due and payable on said returns and all other taxes, fees or other charges imposed on it or any of its Property by any Governmental Authority (other than any amounts the validity of which are currently being contested in good faith by appropriate proceedings and with respect to which any reserves required in conformity with GAAP have been provided on the books of the Borrower or such Restricted Subsidiary, as the case may be), except in each case where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

 

4.11          Federal Regulations. No part of the proceeds of any Loans, and no other extensions of credit hereunder, will be used for any purpose that violates the provisions of the regulations of the Board. If requested by any Lender (through the Administrative Agent) or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U 1 referred to in Regulation U.

 

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4.12          ERISA.

 

(a)            Except as would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect: (i) neither a Reportable Event nor a failure to meet the minimum funding standards (within the meaning of Section 412(a) of the Code or Section 302(a)(2) of ERISA) with respect to periods beginning on or after April 1, 2010 or an “accumulated funding deficiency” (within the meaning of Section 412(a) of the Code or Section 302(a)(2) of ERISA) has occurred during the five year period prior to the date on which this representation is made with respect to any Single Employer Plan, and each Single Employer Plan has complied with the applicable provisions of ERISA and the Code; (ii) no termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen on the assets of the Borrower or any of its Restricted Subsidiaries, during such five-year period; the present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Single Employer Plan allocable to such accrued benefits; (iii) none of the Borrower or any of its Restricted Subsidiaries has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA; (iv) none of the Borrower or any of its Restricted Subsidiaries would become subject to any liability under ERISA if the Borrower or such Restricted Subsidiary were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made; and (v) no Multiemployer Plan is in Reorganization or Insolvent.

 

(b)            The Borrower and its Restricted Subsidiaries have not incurred, and do not reasonably expect to incur, any liability under ERISA or the Code with respect to any plan within the meaning of Section 3(3) of ERISA which is subject to Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA that is maintained by a Commonly Controlled Entity (other than the Borrower and its Restricted Subsidiaries) (a “Commonly Controlled Plan”) merely by virtue of being treated as a single employer under Title IV of ERISA with the sponsor of such plan that would reasonably be likely to have a Material Adverse Effect and result in a direct obligation of the Borrower or any of its Restricted Subsidiaries to pay money.

 

4.13          Investment Company Act. No Loan Party is an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

 

4.14          Subsidiaries.

 

(a)            The Subsidiaries listed on Schedule 4.14 constitute all the Subsidiaries of the Borrower at the Closing Date. Schedule 4.14 sets forth as of the Closing Date the name and jurisdiction of incorporation of each Subsidiary and, as to each Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party and the designation of such Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary.

 

(b)            As of the Closing Date, except as set forth on Schedule 4.14, there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to officers, employees or directors and directors’ qualifying shares) of any nature relating to any Capital Stock of the Borrower or any of its Restricted Subsidiaries.

 

4.15          Environmental Matters. Other than exceptions to any of the following that would not reasonably be expected to have a Material Adverse Effect, none of the Borrower or any of its Restricted Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law for the operation of the Business; or (ii) has become subject to any Environmental Liability.

 

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4.16          Accuracy of Information, etc. As of the Closing Date, no statement or information (excluding the projections and pro forma financial information referred to below) contained in this Agreement, any other Loan Document or any certificate furnished to the Administrative Agent or the Lenders or any of them, by or on behalf of any Loan Party for use in connection with the transactions contemplated by this Agreement or the other Loan Documents, including the 2012 Transactions, when taken as a whole, contained as of the date such statement, information, or certificate was so furnished, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not materially misleading. As of the Closing Date, the projections and pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made, in light of the circumstances under which they were made, it being recognized by the Agents and the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount.

 

4.17          Security Documents.

 

(a)            The Guarantee and Collateral Agreement is effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein of a type in which a security interest can be created under Article 9 of the UCC (including any proceeds of any such item of Collateral); provided that for purposes of this Section 4.17(a), Collateral shall be deemed to exclude any Property expressly excluded from the definition of “Collateral” as set forth in the Guarantee and Collateral Agreement (the “Excluded Collateral”). In the case of (i) the Pledged Securities described in the Guarantee and Collateral Agreement (other than Excluded Capital Stock) when any stock certificates or notes, as applicable, representing such Pledged Securities are delivered to the Collateral Agent and (ii) the other Collateral described in the Guarantee and Collateral Agreement (other than Excluded Collateral), when financing statements in appropriate form are filed in the offices specified on Schedule 4.17 (which financing statements have been duly completed and executed (as applicable) and delivered to the Collateral Agent) and such other filings as are specified on Schedule 3 to the Guarantee and Collateral Agreement are made, the Collateral Agent shall have a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral (including any proceeds of any item of Collateral) (to the extent a security interest in such Collateral can be perfected through the filing of financing statements in the offices specified on Schedule 4.17 and the filings specified on Schedule 3 to the Guarantee and Collateral Agreement, and through the delivery of the Pledged Securities required to be delivered on the Closing Date), as security for the Obligations, in each case prior in right to the Lien of any other Person (except (i) in the case of Collateral other than Pledged Securities, Liens permitted by Section 7.3 and (ii) Liens having priority by operation of law) to the extent required by the Guarantee and Collateral Agreement.

 

(b)            Upon the execution and delivery of any Mortgage to be executed and delivered pursuant to Section 6.8(b), such Mortgage shall be effective to create in favor of the Collateral Agent for the benefit of the Secured Parties a legal, valid and enforceable Lien on the Mortgaged Property described therein and proceeds thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law) and the implied covenants of good faith and fair dealing; and when such Mortgage is filed in the recording office designated by the Borrower, such Mortgage shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Mortgaged Property and the proceeds thereof, as security for the Obligations (as defined in the relevant Mortgage), in each case prior and superior in right to any other Person (other than Liens permitted by Section 7.3 or other encumbrances or rights permitted by the relevant Mortgage).

 

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4.18          Solvency. As of the Closing Date, the Borrower and its Subsidiaries are (on a consolidated basis), and after giving effect to the 2012 Transactions will be, Solvent.

 

4.19          Anti-Terrorism. (a) The Borrower and its Restricted Subsidiaries are in compliance with the USA Patriot Act and (b) none of the Borrower and its Restricted Subsidiaries is a person on the list of “Specially Designated Nationals and Blocked Persons” or subject to the limitations and prohibitions under any other U.S. Department of Treasury’s Office of Foreign Asset Control regulation or executive order (“OFAC”), in each case, except as would not reasonably be expected to have a Material Adverse Effect. The Borrower will not knowingly (directly or indirectly) use the proceeds of the Loans, or request the issuance of any Letter of Credit, for the purpose of financing the activities of any Person, in any country or territory, that is subject to, or the target of, any sanctions under or administered by OFAC, the U.S. State Department or any other enabling legislation or executive order relating thereto as well as sanctions laws and regulations of the United Nations Security Council, the European Union or any member state thereof and the United Kingdom, except as otherwise permitted by applicable law, regulation or license. The Borrower will not knowingly (directly or indirectly) use the proceeds of the Loans, or request the issuance of any Letter of Credit, in material violation of the United States Foreign Corrupt Practices Act of 1977, as amended, and all laws, rules and regulations of the European Union and United Kingdom applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.

 

SECTION 5.          CONDITIONS PRECEDENT

 

5.1            Conditions to Initial Extension of Credit. The agreement of each Lender to make the initial extension of credit requested to be made by it is subject to the satisfaction (or waiver), prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent:

 

(a)            Credit Agreement; Guarantee and Collateral Agreement. The Administrative Agent shall have received (i) this Agreement, executed and delivered by the Borrower and (ii) the Guarantee and Collateral Agreement, executed and delivered by Investor, the Borrower and each Subsidiary Guarantor;

 

(b)            No Default. No Default or Event of Default shall exist as of the Closing Date after giving effect to this Agreement and the borrowing of the Initial Tranche A Term Loans and the Initial Tranche B Term Loans, and the making of the Revolving Commitments;

 

(c)            Representations and Warranties. All of the representations and warranties of the Loan Parties contained in the Loan Documents shall be true and correct in all material respects on the Closing Date (unless such representation or warranty relates to a specific date, in which case such representation or warranty shall be true and correct in all material respects as of such specific date);

 

(d)            Borrowing Notice. The Administrative Agent shall have received a notice of borrowing from the Borrower with respect to the Initial Tranche A Term Loans and Initial Tranche B Term Loans;

 

(e)            Fees. The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore LLP, counsel to the Administrative Agent) required to reimbursed or paid by the Borrower hereunder or under any other Loan Document;

 

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(f)                 Legal Opinions. The Administrative Agent shall have received an executed legal opinion of (i) Debevoise & Plimpton LLP, special New York counsel to the Loan Parties, and (ii) Morris, Nichols, Arsht & Tunnell LLP, special Delaware counsel to the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent;

 

(g)                Closing Certificate. The Administrative Agent shall have received a certificate of the Borrower and each of the other Loan Parties, dated as of the Closing Date, each substantially in the form of Exhibit C, with appropriate insertions and attachments;

 

(h)                USA Patriot Act. The Lenders shall have received from the Borrower and each of the Loan Parties documentation and other information requested by any Lender no less than 10 calendar days prior to the Closing Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act;

 

(i)                 Filings. Each Uniform Commercial Code financing statement and each intellectual property security agreement required by the Security Documents to be filed in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a first priority perfected Lien on the Collateral described therein, shall have been delivered to the Collateral Agent in proper form for filing;

 

(j)                 Pledged Stock; Stock Powers. The Collateral Agent shall have received the certificates, if any, representing the shares of Capital Stock held by a Loan Party pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate