Exhibit 10.1
EXECUTION VERSION
AMENDMENT TO CREDIT AGREEMENT
THIS SOFR AMENDMENT TO CREDIT AGREEMENT, dated as of June 6, 2023 (this “Agreement”), is entered into by and among SS&C TECHNOLOGIES, INC., a Delaware corporation (the “Company”), SS&C EUROPEAN HOLDINGS, a société à responsabilité limitée, organized under the laws of Luxembourg (the “Designated Borrower 1”), SS&C TECHNOLOGIES HOLDINGS EUROPE, a société à responsabilité limitée, organized under the laws of Luxembourg (the “Designated Borrower 2”), SS&C FINANCING LLC, a Delaware limited liability company (together with the Designated Borrower 1 and the Designated Borrower 2, each a “Designated Borrower” and, collectively the “Designated Borrowers” and the Designated Borrowers, together with the Company, the “Borrowers” and each a “Borrower”), Credit Suisse AG, Cayman Islands Branch, as term facilities administrative agent (in such capacity, the “Term Facilities Administrative Agent”) and Morgan Stanley Senior Funding, Inc., as revolving facility administrative agent (in such capacity, the “Revolving Facility Administrative Agent” and, together with the Term Facilities Administrative Agent, the “Administrative Agents”). Capitalized terms used but not defined shall have the meanings assigned to them in the Amended Credit Agreement (as defined below).
R E C I T A L S:
WHEREAS, the Company, the Designated Borrowers, the Parent, the Guarantors from time to time party thereto, the Lenders from time to time party thereto, the Term Facilities Administrative Agent and the Revolving Facilities Administrative Agent are party to the Amended and Restated Credit Agreement dated as of April 16, 2018 (as amended by that certain Commitment Increase Amendment dated as of October 1, 2018, that certain Commitment Increase Amendment dated as of November 16, 2018, that certain First Repricing Amendment to Credit Agreement dated as of January 31, 2020, that certain Incremental Joinder dated as of March 22, 2022, and that certain Revolving Facility Amendment to Credit Agreement dated as of December 28, 2022, and as further amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”).
WHEREAS, the Term Facilities Administrative Agent has determined that the circumstances contemplated by Section 3.03(a)(ii)(B) of the Existing Credit Agreement have arisen with respect to the Eurocurrency Rate (as defined in the Existing Credit Agreement) applicable to Term Loans denominated in Dollars, and the Administrative Agents and the Borrowers have each agreed, subject to the terms and conditions stated below, to establish Term SOFR plus a Term SOFR Adjustment of 11.448 basis points, 26.161 basis points, and 42.826 basis points for Interest Periods of one month, three months, and six months, respectively, as a replacement rate for such Term Loans.
WHEREAS, the Borrowers and the Administrative Agents have agreed to further amend or otherwise modify the Existing Credit Agreement as set forth or contemplated herein, as authorized by Section 3.03(a)(ii) of the Existing Credit Agreement.
WHEREAS, in furtherance thereof, each party hereto hereby consents to this Agreement to make certain modifications to the Existing Credit Agreement (the Existing Credit Agreement, as modified hereby, the “Amended Credit Agreement”).
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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On and after the Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any other Loan Document, in each case shall be deemed a reference to the Amended Credit Agreement. This Agreement shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents.
The parties hereto confirm that no novation of any kind has occurred as a result of, or in connection with, this Agreement or otherwise, any such novation being hereby expressly disclaimed.
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The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other state laws based on the Uniform Electronic Transactions Act, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
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CREDIT SUISSE AG, CAYMAN ISLANDS | |
By: | /s/ D. Andrew Maletta |
| Name: D. Andrew Maletta |
| Title: Authorized Signatory |
By: | /s/ Illan Dolgin |
| Name: Illan Dolgin |
| Title: Authorized Signatory |
[Signature Page to SOFR Amendment to Credit Agreement]
MORGAN STANLEY SENIOR FUNDING, INC., as Revolving Facility Administrative Agent | |
By: | /s/ Lisa Hanson |
| Name: Lisa Hanson |
| Title: Authorized Signatory |
[Signature Page to SOFR Amendment to Credit Agreement]
IN WITNESS WHEREOF, each of the undersigned has caused its duly Authorized Officer to execute and deliver this Agreement as of the date first set forth above.
SS&C TECHNOLOGIES, INC., as a | |
By: | /s/ Patrick J. Pedonti |
| Name: Patrick J. Pedonti |
| Title: Senior Vice President and Financial Officer |
SS&C TECHNOLOGIES HOLDINGS | |
By: | /s/ Patrick J. Pedonti |
| Name: Patrick J. Pedonti |
| Title: Type A Manager |
By: | /s/ Marjorie Allo |
| Name: Marjorie Allo |
| Title: Type B Manager |
SS&C EUROPEAN HOLDINGS, a société à responsabilité limitée, organized under the laws of Luxembourg having its registered office at 2, rue Jean Monnet, L-2180, Luxembourg, Grand-Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies (Registre de commerce et des sociétés, Luxembourg) under number B173925, as a
Borrower
By: | /s/ Patrick J. Pedonti |
| Name: Patrick J. Pedonti |
| Title: Category A Manager |
By: | /s/ Marjorie Allo |
| Name: Marjorie Allo |
| Title: Category B Manager |
[Signature Page to SOFR Amendment to Credit Agreement]
SS&C FINANCING LLC, as a Borrower
By: SS&C TECHNOLOGIES HOLDINGS
EUROPE, a société à responsabilité limitée, organized under the laws of Luxembourg having its registered office at 2, rue Jean Monnet, L-2180, Luxembourg, Grand-Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies (Registre de commerce et des sociétés, Luxembourg) under number B163061, its sole member
By: | /s/ Patrick J. Pedonti |
| Name: Patrick J. Pedonti |
| Title: Type A Manager |
By: | /s/ Marjorie Allo |
| Name: Marjorie Allo |
| Title: Type B Manager |
[Signature Page to SOFR Amendment to Credit Agreement]
EXHIBIT A
TO SOFR AMENDMENT TO CREDIT AGREEMENT
Amended Credit Agreement
- Attached -
AMENDED AND RESTATED CREDIT AGREEMENT
Amended and Restated as of April 16, 2018
as amended by that certain
Commitment Increase Amendment dated as of October 1, 2018
Commitment Increase Amendment dated as of November 16, 2018
First Repricing Amendment to Credit Agreement dated as of January 31, 2020
Incremental Joinder dated as of March 22, 2022
Revolving Facility Amendment dated as of December 28, 2022
SOFR Amendment to Credit Agreement dated as of June 6, 2023
among
SS&C TECHNOLOGIES, INC.,
SS&C TECHNOLOGIES HOLDINGS EUROPE S.À R.L.,
SS&C EUROPEAN HOLDINGS S.À R.L. and
SS&C FINANCING LLC,
as the Borrowers,
SS&C TECHNOLOGIES HOLDINGS, INC.,
as the Parent,
CERTAIN SUBSIDIARIES IDENTIFIED HEREIN,
as Guarantors,
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as Term Facilities Administrative Agent,
MORGAN STANLEY SENIOR FUNDING, INC.,
as Revolving Facility Administrative Agent,
CREDIT SUISSE AG, NEW YORK BRANCH,
MORGAN STANLEY BANK, N.A. and
BANK OF AMERICA, N.A.,
as L/C Issuers,
THE OTHER LENDERS PARTY HERETO,
CREDIT SUISSE SECURITIES (USA) LLC,
MORGAN STANLEY SENIOR FUNDING, INC.,
BARCLAYS BANK PLC and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners,
CITIBANK, N.A.,
DEUTSCHE BANK SECURITIES INC. and
RBC CAPITAL MARKETS,
as Co-Managers,
MORGAN STANLEY SENIOR FUNDING, INC.,
CREDIT SUISSE LOAN FUNDING LLC,
BOFA SECURITIES INC.,
CITIBANK, N.A.,
GOLDMAN SACHS BANK USA and
RBC CAPITAL MARKETS, LLC,
as Joint Lead Arrangers, Joint Bookrunners and
Co-Syndication Agents for the Revolving Facility Amendment
HSBC SECURITIES (USA) INC.
TD SECURITIES (USA) LLC and
UMB BANK, N.A.,
as Co-Syndication Agents for the Revolving Facility Amendment and
COMMERCE BANK,
DEUTSCHE BANK SECURITIES INC.,
JPMORGAN CHASE BANK, N.A.,
MUFG BANK, LTD.,
NATIONAL WESTMINSTER BANK PLC and
OLD NATIONAL BANK,
as Co-Documentation Agents for the Revolving Facility Amendment
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND ACCOUNTING TERMS 2
1.01 Defined Terms 2
1.02 Other Interpretive Provisions 85
1.03 Accounting Terms 86
1.04 Rounding 87
1.05 Exchange Rates; Currency Equivalents 87
1.06 Additional Alternative Currencies 88
1.07 Change of Currency 89
1.08 Times of Day 89
1.09 Letter of Credit Amounts 89
1.10 Guaranty and Security Principles 89
1.11 [Reserved] 89
1.12 Limited Condition Acquisitions 89
1.13 Additional Borrowers 90
1.14 Designated U.S. Co-Borrower 92
1.15 Rates 92
1.16 Administrative Agent and Revolving Facility Administrative Agent 93
Article II THE COMMITMENTS AND CREDIT EXTENSIONS 93
2.01 Revolving Loans, Term Loans and Incremental Term Loans 93
2.02 Borrowings, Conversions and Continuations of Loans 100
2.03 Letters of Credit 102
2.04 [Reserved] 112
2.05 Prepayments 112
2.06 Termination or Reduction of Commitments 117
2.07 Repayments of Loans 119
2.08 Interest 122
2.09 Fees 123
2.10 Computation of Interest and Fees 124
2.11 Evidence of Debt 125
2.12 Payments Generally; Administrative Agents’ Clawback 125
2.13 Sharing of Payments by Lenders 128
2.14 Cash Collateral 129
2.15 Defaulting Lenders 130
2.16 Special Provisions Relating to a Re-Allocation Event 132
2.17 Refinancing Amendments 132
2.18 Extension of Term Loans; Extension of Revolving Loans 134
Article III TAXES, YIELD PROTECTION AND ILLEGALITY 139
3.01 Taxes 139
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3.02 Illegality 143
3.03 Inability to Determine Rates; Alternate Rate of Interest 144
3.04 Increased Costs 148
3.05 Compensation for Losses 150
3.06 Mitigation Obligations; Replacement of Lenders 150
3.07 Survival 151
Article IV GUARANTY 151
4.01 The Guaranty 151
4.02 Obligations Unconditional 152
4.03 Reinstatement 153
4.04 Certain Additional Waivers 154
4.05 Remedies 154
4.06 Rights of Contribution 155
4.07 Guarantee of Payment; Continuing Guarantee 155
4.08 Limitation on Guaranty by Luxembourg Guarantors 155
4.09 Limitation on Guaranty 156
4.10 Limitation on Guaranty by Swiss Guarantors 156
4.11 Keepwell 158
Article V CONDITIONS PRECEDENT 158
5.01 [Reserved] 158
5.02 Conditions to Credit Extensions After the Restatement Effective Date 158
Article VI REPRESENTATIONS AND WARRANTIES 159
6.01 Existence 159
6.02 Corporate Power; Authorization 159
6.03 No Contravention 160
6.04 Binding Effect 160
6.05 Financial Statements; No Material Adverse Effect 160
6.06 Litigation 161
6.07 No Default 161
6.08 Ownership of Property 161
6.09 Environmental Compliance 161
6.10 Insurance 161
6.11 Taxes 161
6.12 ERISA Compliance 162
6.13 Subsidiaries 163
6.14 Use of Proceeds; Margin Regulations; Investment Company Act 163
6.15 Disclosure 163
6.16 Compliance with Laws 163
6.17 Intellectual Property 164
6.18 Solvency 164
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6.19 Perfection of Security Interests in the Collateral 164
6.20 Business Locations; Taxpayer Identification Number 164
6.21 Sanctions 165
6.22 Anti-Corruption Laws; FCPA 165
6.23 COMI 165
Article VII AFFIRMATIVE COVENANTS 166
7.01 Financial Statements 166
7.02 Certificates; Other Information 166
7.03 Notices 169
7.04 Payment of Taxes 169
7.05 Preservation of Existence, Etc. 169
7.06 Maintenance of Properties 170
7.07 Maintenance of Insurance 170
7.08 Compliance with Laws 170
7.09 Books and Records 170
7.10 Inspection Rights 170
7.11 Use of Proceeds 171
7.12 Additional Subsidiaries 171
7.13 Further Assurances 172
7.14 Pledged Assets 173
7.15 COMI 174
7.16 Ratings 174
7.17 Designation of Subsidiaries 174
7.18 Margin Regulations 175
7.19 Post-Closing Obligations 175
7.20 Compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions 175
Article VIII NEGATIVE COVENANTS 175
8.01 Liens 176
8.02 Investments 178
8.03 Indebtedness 179
8.04 Fundamental Changes 182
8.05 Dispositions 183
8.06 Restricted Payments 184
8.07 Change in Nature of Business 185
8.08 Transactions with Affiliates 185
8.09 Burdensome Agreements 185
8.10 Use of Proceeds 187
8.11 Financial Covenant 187
8.12 Prepayment of Other Indebtedness, Etc. 187
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity 188
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Article IX EVENTS OF DEFAULT AND REMEDIES 188
9.01 Events of Default 188
9.02 Remedies Upon Event of Default 191
9.03 Application of Funds 192
Article X ADMINISTRATIVE AGENTS 195
10.01 Appointment and Authority 195
10.02 Rights as a Lender 195
10.03 Exculpatory Provisions 196
10.04 Reliance by Administrative Agents 197
10.05 Delegation of Duties 197
10.06 Resignation of Administrative Agents 197
10.07 Non-Reliance on Administrative Agents and Other Lenders 198
10.08 No Other Duties; Etc. 199
10.09 Administrative Agents May File Proofs of Claim 199
10.10 Collateral and Guaranty Matters 200
10.11 Secured Swap Contracts and Secured Treasury Management Agreements 200
10.12 Delivery of Information 201
10.13 Erroneous Payment 201
Article XI MISCELLANEOUS 204
11.01 Amendments, Etc. 204
11.02 Notices; Effectiveness; Electronic Communications 208
11.03 No Waiver; Cumulative Remedies; Enforcement 210
11.04 Expenses; Indemnity; and Damage Waiver 211
11.05 Payments Set Aside 213
11.06 Successors and Assigns 214
11.07 Treatment of Certain Information; Confidentiality 219
11.08 Set-off; Several Obligations 220
11.09 Interest Rate Limitation 221
11.10 Counterparts; Integration; Effectiveness 221
11.11 Survival of Representations and Warranties 222
11.12 Severability 222
11.13 Replacement of Lenders 222
11.14 Governing Law; Jurisdiction; Etc. 223
11.15 Waiver of Right to Trial by Jury 225
11.16 No Advisory or Fiduciary Responsibility 226
11.17 Electronic Execution of Assignments and Certain Other Documents 226
11.18 USA PATRIOT Act Notice 226
11.19 Judgment Currency 227
11.20 Release of Collateral and Guaranty Obligations 227
11.21 Waiver of Sovereign Immunity 228
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11.22 Intercreditor Agreements 229
11.23 Certain ERISA Matters. 229
11.24 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 231
11.25 Acknowledgement Regarding Any Supported QFCs. 232
11.26 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. 233
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SCHEDULES
1.01 Post-Closing Reorganization Transactions
2.01 Commitments and Applicable Percentages
6.02 Consents
6.06 Litigation
6.10 Insurance
6.13 Subsidiaries
6.17 IP Rights
6.20(a) Locations of Real Property
6.20(b) Locations of Tangible Personal Property
6.20(c) Location of Chief Executive Office, Taxpayer Identification Number, Etc.
6.20(d) Changes in Legal Name, State of Formation and Structure
7.19 Post-Closing Obligations
8.01 Liens Existing on the Restatement Effective Date
8.02(b) Investments Existing on the Restatement Effective Date
8.03 Indebtedness Existing on the Restatement Effective Date
8.05 Dispositions
8.08 Affiliate Transactions
11.02 Certain Addresses for Notices
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EXHIBITS
1.01(a) Form of Incremental Term Loan Agreement
1.01(b) Form of Re-Allocation Agreement
1.01(d) Form of Term Note
1.01(e) Form of Revolving Note
1.10 Guaranty and Security Principles
1.13(d) Form of Substitute Affiliate Lender Designation Notice
2.01(e) Form of Incremental Joinder
2.02 Form of Loan Notice
5.01(j) Form of Solvency Certificate
7.02 Form of Compliance Certificate
7.12 Form of Joinder Agreement
11.06(b) Form of Assignment and Assumption
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, amended and restated as of April 16, 2018, among SS&C TECHNOLOGIES, INC., a Delaware corporation (the “Company”), SS&C EUROPEAN HOLDINGS, a société à responsabilité limitée, organized under the laws of Luxembourg having its registered office at 2, rue Jean Monnet, L-2180, Luxembourg, Grand-Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B173925 (the “Designated Borrower 1”), SS&C TECHNOLOGIES HOLDINGS EUROPE, a société à responsabilité limitée, organized under the laws of Luxembourg having its registered office at 2, rue Jean Monnet, L-2180, Luxembourg, Grand-Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B163061 (the “Designated Borrower 2”), SS&C FINANCING LLC, a Delaware limited liability company that is member-managed and directly (or, to the extent indirect ownership (as opposed to direct ownership) is not adverse to the Lenders from a tax perspective, or indirectly) wholly-owned by the Designated Borrower 2 (the “Designated U.S. Co-Borrower” and, together with the Designated Borrower 1 and the Designated Borrower 2, each a “Designated Borrower” and, collectively the “Designated Borrowers” and the Designated Borrowers, together with the Company, the “Borrowers” and each a “Borrower”), SS&C TECHNOLOGIES HOLDINGS, INC., a Delaware corporation (the “Parent”), the other Guarantors (defined herein), the Lenders (defined herein), Credit Suisse AG, Cayman Islands Branch, as Administrative Agent and as an L/C Issuer and Morgan Stanley Senior Funding, Inc., as the Revolving Facility Administrative Agent and an L/C Issuer.
WHEREAS, the Company is party to that certain Credit Agreement, dated as of July 8, 2015, among the Company, the Designated Borrower 1, the Designated Borrower 2, the Parent, the other Guarantors, the Lenders, Deutsche Bank AG New York Branch, as Administrative Agent and as an L/C Issuer and Morgan Stanley Senior Funding, Inc., as an L/C Issuer (as amended by that certain First Amendment to the Credit Agreement dated as of March 2, 2017 and as it may be further amended, restated, supplemented or otherwise modified prior to the Restatement Effective Date, the “Existing Credit Agreement”);
WHEREAS, pursuant to that certain Resignation and Appointment Agreement dated as of April 16, 2018, Deutsche Bank AG New York Branch as the Resigning Collateral Agent and Resigning Administrative Agent (each as defined therein), has resigned as collateral agent and administrative agent effective as of the Restatement Effective Date and Credit Suisse AG, Cayman Islands Branch shall serve as Successor Collateral Agent and Successor Administrative Agent (each as defined therein) in such capacities from and after the Restatement Effective Date;
WHEREAS, the Required Lenders and other parties to the Second Amendment to the Credit Agreement have agreed to amend and restate the Existing Credit Agreement in its entirety to read as set forth in this Agreement, and it has been agreed by such parties that the Loans and any Letters of Credit outstanding as of the Restatement Effective Date and other “Obligations” under (and as defined in) the Existing Credit Agreement (including indemnities) shall be governed by and deemed to be outstanding under this Agreement with the intent that the terms of this Agreement shall supersede the terms of the Existing Credit Agreement, and all references to the Existing Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions
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hereof; provided that (1) the grants of security interests and Liens under and pursuant to the Loan Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the secured Obligations of the Company and the other Loan Parties under the Existing Credit Agreement and this Agreement and each other Loan Document and each of the foregoing shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby or by the Second Amendment, and the parties hereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement, (2) the letters of credit identified on Schedule 8.03 hereto (the “Existing Letters of Credit”) shall be deemed to be Letters of Credit for all purposes under this Agreement and (3) it is agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or reborrowing of any Obligation under the Existing Credit Agreement or any other Loan Document except as expressly modified by this Agreement, nor does it operate as a waiver of any right, power or remedy of any Lender under any Loan Document.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
DEFINITIONS AND ACCOUNTING TERMS
“2017 Refinancing Arranger” means Morgan Stanley Senior Funding Inc., in its capacity as sole lead arranger and bookrunner with respect to the First Amendment and the transactions contemplated thereby.
“2017 Refinancing Exchanged Term B-1 Loans” means the 2017 Refinancing Term B-1 Loans resulting from the 2017 Refinancing Term Loan Exchange.
“2017 Refinancing Exchanged Term B-2 Loans” means the 2017 Refinancing Term B-2 Loans resulting from the 2017 Refinancing Term Loan Exchange.
“2017 Refinancing New Term B-1 Lender” means each Person that has executed and delivered (as a “2017 Refinancing New Term B-1 Lender”) a counterpart of the First Amendment to the Original Administrative Agent and the 2017 Refinancing Arranger in accordance with the terms thereof.
“2017 Refinancing New Term B-1 Loans” means the term loans made to the Company by the 2017 Refinancing New Term B-1 Lenders on the First Amendment Effective Date.
“2017 Refinancing New Term B-2 Lender” means each Person that has executed and delivered (as a “2017 Refinancing New Term B-2 Lender”) a counterpart of the First Amendment to the Original Administrative Agent and the 2017 Refinancing Arranger in accordance with the terms thereof.
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“2017 Refinancing New Term B-2 Loans” means the term loans made to the Designated Borrower 1 by the 2017 Refinancing New Term B-2 Lender on the First Amendment Effective Date.
“2017 Refinancing Term A-1 Loans” has the meaning assigned to such term in the Existing Credit Agreement.
“2017 Refinancing Term A-2 Loans” has the meaning assigned to such term in the Existing Credit Agreement.
“2017 Refinancing Term B-1 Lender” means a Term Lender with an outstanding 2017 Refinancing Term B-1 Loan.
“2017 Refinancing Term B-1 Loans” means the term loans resulting from the consolidation of the 2017 Refinancing Exchanged Term B-1 Loans and the 2017 Refinancing New Term B-1 Loans pursuant to the 2017 Refinancing Term Loan Consolidation.
“2017 Refinancing Term B-2 Lender” means a Term Lender with an outstanding 2017 Refinancing Term B-2 Loan.
“2017 Refinancing Term B-2 Loans” means the term loans resulting from the consolidation of the 2017 Refinancing Exchanged Term B-2 Loans and the 2017 Refinancing New Term B-2 Loans pursuant to the 2017 Refinancing Term Loan Consolidation.
“2017 Refinancing Term Loan Consolidation” shall mean (a) the consolidation of the 2017 Refinancing New Term B-1 Loans and the 2017 Refinancing Exchanged Term B-1 Loans and (b) the consolidation of the 2017 Refinancing New Term B-2 Loans and the 2017 Refinancing Exchanged Term B-2 Loans, in each case pursuant to the First Amendment.
“2017 Refinancing Term Loan Exchange” means the exchange on the First Amendment Effective Date of (a) Term B-1 Loans for 2017 Refinancing Exchanged Term B-1 Loans and (b) Term B-2 Loans for 2017 Refinancing Exchanged Term B-2 Loans, as applicable, pursuant to the First Amendment.
“2018 Senior Notes” means the unsecured senior notes issued by the Parent pursuant to the 2018 Senior Notes Indenture, if any.
“2018 Senior Notes Documents” means the 2018 Senior Notes, the 2018 Senior Notes Indenture and all other documents evidencing, guaranteeing or otherwise governing the terms of the 2018 Senior Notes.
“2018 Senior Notes Indenture” means the Indenture, if any, among the Parent, the Company, the other Domestic Guarantors and the financial institution identified therein as trustee.
“Acquisition”, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of either (a) all or a substantial portion of the property of, or a line of business, product line or division of, another Person or (b) Equity
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Interests of another Person that, upon the consummation thereof, will be a Subsidiary owned directly or indirectly by the Parent or a Designated Borrower, in each case whether or not involving a merger or consolidation with such other Person.
“Act” has the meaning specified in Section 11.18.
“Additional Refinancing Lender” means, at any time, any bank, financial institution or other institutional lender or investor (other than any such bank, financial institution or other institutional lender or investor that is a Lender at such time) that agrees to provide any portion of any Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.17, provided that each Additional Refinancing Lender shall be subject to the approval of (i) (A) in the case of Refinancing Term Loans, the Administrative Agent, such approval not to be unreasonably withheld or delayed, to the extent that such Additional Refinancing Lender is not then an existing Lender, an Affiliate of a then existing Lender or an Approved Fund or (B) in the case of Refinancing Revolving Commitments, the Revolving Facility Administrative Agent and each L/C Issuer, such approval not to be unreasonably withheld or delayed, to the extent that such Additional Refinancing Lender is not then an existing Revolving Lender, an Affiliate of an existing Revolving Lender or an Approved Fund with respect to a Revolving Lender and (ii) the Company (such approval not to be unreasonably withheld, delayed or conditioned).
“Adjusted Daily Simple SONIA” means, for any day (a “SONIA RFR Rate Day”), a rate per annum equal to, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to Sterling, the greater of (i) the sum of (A) SONIA for the day (such day, a “Sterling RFR Determination Day”) that is five (5) RFR Business Days prior to (I) if such SONIA RFR Rate Day is an RFR Business Day, such SONIA RFR Rate Day or (II) if such SONIA RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such SONIA RFR Rate Day, in each case, as such SONIA is published by the SONIA Administrator on the SONIA Administrator’s Website; provided that if by 5:00 p.m. (London time) on the second RFR Business Day immediately following any Sterling RFR Determination Day, SONIA in respect of such Sterling RFR Determination Day has not been published on the SONIA Administrator’s Website and a Benchmark Replacement Date with respect to the Adjusted Daily Simple SONIA for Sterling has not occurred, then SONIA for such Sterling RFR Determination Day will be SONIA as published in respect of the first preceding RFR Business Day for which such SONIA was published on the SONIA Administrator’s Website; provided further that SONIA as determined pursuant to this proviso shall be utilized for purposes of calculation of Adjusted Daily Simple SONIA for no more than three (3) consecutive SONIA RFR Rate Days and (B) the SONIA Adjustment and (ii) the Floor.
“Adjusted Eurocurrency Rate” means, with respect to any Eurocurrency Rate Borrowing for any Interest Period, an interest rate per annum equal to the Eurocurrency Rate for such Interest Period multiplied by the Statutory Reserve Rate.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
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“Administrative Agent” means Credit Suisse AG, Cayman Islands Branch in its capacity as (a) Term Facilities Administrative Agent and/or (b) collateral agent for the Lenders in respect of the Facilities under any of the Loan Documents or any successor administrative agent in respect of the Term Facilities and/or collateral agent; for the avoidance of doubt the term “Administrative Agent” shall not include the Revolving Facility Administrative Agent.
“Administrative Agents” means the Term Facilities Administrative Agent and the Revolving Facility Administrative Agent.
“Administrative Agent’s Office” means, with respect to any currency, the Applicable Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agents may from time to time notify to the Company and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form approved by the Applicable Administrative Agent.
“Advent Software Luxembourg” means Advent Software Luxembourg, a société à responsabilité limitée organized under the laws of Luxembourg having its registered office at 2, rue Jean Monnet, L-2180 Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B198391.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) solely with respect to the Revolving Facility, any UK Financial Institution.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders. The initial amount of the Aggregate Revolving Commitments in effect on the Restatement Effective Date is TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000), as such amount may be adjusted from time to time in accordance with this Agreement. The amount of the Aggregate Revolving Commitments in effect on the Revolving Facility Amendment Effective Date is SIX HUNDRED MILLION DOLLARS ($600,000,000).
“Agreement” means this Credit Agreement.
“Alternative Currency” means the Euro, Sterling, Canadian Dollars and each other currency (other than Dollars) that is approved in accordance with Section 1.06.
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Applicable Administrative Agent or the Applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
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“Alternative Currency Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate Revolving Commitments. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Applicable Administrative Agent” means with respect to the Term Facilities, the Term Facilities Administrative Agent and with respect to the Revolving Facility, the Revolving Facility Administrative Agent.
“Applicable ECF Percentage” means, with respect to any Excess Cash Flow Period, the percentage of Excess Cash Flow required to be repaid pursuant to Section 2.05(b)(iii) for such Excess Cash Flow Period.
“Applicable L/C Issuer” means, with respect to any Letter of Credit, the L/C Issuer with respect thereto.
“Applicable L/C Sublimit” means (a) with respect to each L/C Issuer on the Restatement Effective Date, the amount set forth opposite such L/C Issuer’s name on Schedule 2.01 and (b) with respect to any other Person that becomes an L/C Issuer hereunder, such amount as agreed to in writing by the Company and such Person at the time such Person becomes an L/C Issuer pursuant to the terms of the applicable agreement pursuant to which such entity agrees to become an L/C Issuer hereunder, as each of the foregoing amounts may be decreased or increased from time to time with the written consent of the Company and the L/C Issuers (provided that any increase in the Applicable L/C Sublimit with respect to any L/C Issuer shall only require the consent of the Company and such L/C Issuer).
“Applicable Percentage” means with respect to (a) any Revolving Lender at any time, with respect to such Revolving Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Revolving Lender’s Revolving Commitment at such time; provided that if the commitment of each Revolving Lender to make Revolving Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender shall be determined based on the Applicable Percentage of such Revolving Lender most recently in effect, giving effect to any subsequent assignments and (b) any Term Lender under a given Term Facility at any time, with respect to such Term Lender’s Term Loans under such Term Facility at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of all Term Loans under such Term Facility held by such Term Lender at such time. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01, in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, in any documentation executed by such Lender pursuant to Section 2.01(f), in any Extension Amendment or in any Refinancing Amendment, as applicable. The Applicable Percentages of the Revolving Lenders shall be subject to adjustment as provided in Section 2.15(iv).
“Applicable Rate” means:
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(i) at any time prior to the Second Amendment Effective Date,
Consolidated Secured Net Leverage Ratio | Base Rate Loans | Eurocurrency Rate Loans |
≥ 3.00:1.0 | 1.75% | 2.75% |
< 3.00:1.0 | 1.50% | 2.50% |
(ii) at any time on or after the Second Amendment Effective Date and prior to the Revolving Facility Amendment Effective Date,
Consolidated Secured Net Leverage Ratio | Base Rate Loans | Eurocurrency Rate Loans |
≥ 4.75:1.0 | 1.25% | 2.25% |
< 4.75:1.0 | 1.00% | 2.00% |
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(iii) at any time on or after the Revolving Facility Amendment Effective Date,
Consolidated Secured Net Leverage Ratio | Base Rate Loans | Eurocurrency Rate/SOFR/SONIA Loans |
≥ 2.75:1.0 | 0.50% | 1.50% |
< 2.75:1.0 | 0.25% | 1.25% |
(i) at any time prior to the Second Amendment Effective Date,
Consolidated Secured Net Leverage Ratio | Commitment Fee |
≥ 3.00:1.0 | 0.50% |
< 3.00:1.0 | 0.375% |
(ii) at any time on or after the Second Amendment Effective Date and at any time prior to the Revolving Facility Amendment Date,
Consolidated Secured Net Leverage Ratio | Commitment Fee |
≥ 4.75:1.0 | 0.50% |
< 4.75:1.0 | 0.375% |
(iii) at any time on or after the Revolving Facility Amendment Date,
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Consolidated Secured Net Leverage Ratio | Commitment Fee |
≥ 2.75:1.0 | 0.375% |
< 2.75:1.0 | 0.250% |
in each case in clauses (g) and (i) above based upon the Consolidated Net Secured Leverage Ratio as set forth in the most recent Compliance Certificate received by the Revolving Facility Administrative Agent pursuant to Section 7.02(b).
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Net Secured Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then upon the request of the Required Lenders, the highest Applicable Rate shall each apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue to apply until the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with Section 7.02(b), whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Net Secured Leverage Ratio contained in such Compliance Certificate. The Applicable Rate in effect from the Restatement Effective Date through the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(b) for the first fiscal quarter ending after the Restatement Effective Date shall be the highest Applicable Rate.
“Applicable Revolving Percentage” means, with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.
“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Applicable Administrative Agent or the Applicable L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or that holds a Loan under such Facility, at such time and (b) with respect to the Letter of Credit Sublimit, (i) each L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Lenders.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
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“Arrangers” means Credit Suisse Securities (USA) LLC, Morgan Stanley Senior Funding, Inc., Barclays Bank PLC and JPMorgan Chase Bank, N.A., each in its capacity as joint lead arranger and joint bookrunner with respect to the Second Amendment and the transactions contemplated thereby.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Applicable Administrative Agent, in substantially the form of Exhibit 11.06(b) or any other form approved by the Applicable Administrative Agent.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease, and (c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by each of the Administrative Agents in its reasonable judgment.
“Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2017 and the related consolidated statements of income or operations, shareholders’ equity and cash flows of the Parent and its Subsidiaries for such fiscal year, including the notes thereto.
“Availability Period” means with respect to the Revolving Facility, the period from and including the Restatement Effective Date to the earliest of (i) the Revolving Loan Maturity Date, (ii) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Revolving Lender to make Revolving Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.
“Available Amount” means, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:
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“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.03(c)(iv).
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“Bail-In Action” means (a) solely with respect to the Term Loans, the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution or (b) solely with respect to the Revolving Loans, the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) solely with respect to the Term Loans, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule or (b) solely with respect to the Revolving Loans, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and 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 affiliate (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as announced from time to time by, in the case of the Term Facility, CS, in the case of the Revolving Facility, MSSF, as its “prime rate” in effect at its principal office in New York City, and (c) with respect to the SOFR Loans, Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00% and (d) with respect to all Loans other than the SOFR Loans, the Adjusted Eurocurrency Rate for Loans denominated in Dollars (which rate shall be based upon an Interest Period of one month and shall be determined on a daily basis) plus 1.0%; provided, that, for the avoidance of doubt, the Adjusted Eurocurrency Rate for any day shall be based on the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at approximately 11:00 a.m. London time two Business Days prior to such day; subject to the definition of “Eurocurrency Rate”; provided further; provided that, if the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. The “prime rate” is a rate set by CS or MSSF based upon various factors including CS’s or MSSF’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the “prime rate” announced by CS or MSSF shall take effect at the opening of business on the day specified in the announcement of such change. Any change in the Base Rate due to a change in the “prime rate”, the Federal Funds Rate, or Adjusted Term SOFR or the Adjusted Eurocurrency Rate shall be effective from and including the effective date of such change in the “prime rate”, the Federal Funds Rate, or Adjusted Term SOFR or the Adjusted Eurocurrency Rate, respectively.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. Base Rate Loans shall be denominated in Dollars.
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“Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Benchmark” means, initially, with respect to any (a) Term B-6 Loans, Term B-7 Loans or Revolving Loans denominated in Dollars,SOFR Loans, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark for Dollars, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.03(c)(i) and (b) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Sterling, Adjusted Daily Simple SONIA; provided that if a Benchmark Transition Event has occurred with respect to Adjusted Daily Simple SONIA or the then-current Benchmark for Sterling, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.03(c)(i).
“Benchmark Replacement” means, with respect to any Benchmark Transition Event for any then-current Benchmark, the first alternative set forth in the order below that can be determined by the Applicable Administrative Agent for the applicable Benchmark Replacement Date; provided that with respect to a Benchmark with respect to any Obligations, interest, fees, commissions or other amounts denominated in Sterling or calculated with respect thereto, the alternative set forth in clause (b) below:
If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Applicable Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread
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adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency at such time.
“Benchmark Replacement Date” means a date and time determined by the Applicable Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark for any Currency:
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to the then-current Benchmark for any Currency, the occurrence of one or more of the following events with respect to such Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, the central bank for the Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component
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thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any then-current Benchmark for any Currency, the period (if any) (a) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03(c) and (b) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03(c).
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BFEA EURIBOR” has the meaning specified in the definition of “EURIBOR Rate”.
“Blue Prism” means the “Acquired Business” as such term is defined in the Incremental B-6/B-7 Amendment.
“Blue Prism Acquisition” means the acquisition by the Company of Blue Prism pursuant to the Blue Prism Scheme.
“Blue Prism Scheme” means the “Scheme” as such term is defined in the Incremental B-6/B-7 Amendment.
“Blue Prism Transactions” means, collectively, (a) the consummation of the Blue Prism Acquisition on the Incremental B-6/B-7 Effective Date and the other transactions contemplated by the Blue Prism Scheme on or prior to the Incremental B-6/B-7 Effective Date, (b) the effectiveness of the Term B-6 Loans and the Term B-7 Loans under this Agreement pursuant to the Incremental B-6/B-7 Amendment and (c) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.
“Borrower” and “Borrowers” has the meaning specified in the introductory paragraph hereto.
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“Borrowing” means a borrowing consisting of simultaneous Loans under the same Facility of the same Type, in the same currency and, in the case of Eurocurrency Rate Loans or SOFR Loans, having the same Interest Period made by each of the applicable Lenders pursuant to Section 2.01; provided that the term “Borrowing” shall include the consolidated “borrowing” of (a) the 2017 Refinancing New Term B-1 Loans and the 2017 Refinancing Exchanged Term B-1 Loans and (b) the 2017 Refinancing New Term B-2 Loans and the 2017 Refinancing Exchanged Term B-2 Loans, in each case resulting from the 2017 Refinancing Term Loan Consolidation.
“Bridge Facility” means the $750,000,000 senior unsecured bridge loan facility, if any, provided to the Company pursuant to the terms of that certain Second Amended and Restated Commitment Letter, dated as of February 15, 2018, by and among Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc., Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Deutsche Bank AG Cayman Islands Branch, JPMorgan Chase Bank, N.A., Royal Bank of Canada, RBC Capital Markets and the Company, as amended, restated, supplemented and otherwise modified from time to time.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York or the state where the Applicable Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day that is also a London Banking Day, (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day, (cb) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency, (dc) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency and (ed) when used in connection with a SOFR Loan, or any other calculation or determination involving SOFR, the term “Business Day” means any day that is only a U.S. Government Securities Business Day.
“Capital Expenditures” means, for any period then ended, all cash capital expenditures of the Parent and its Restricted Subsidiaries on a consolidated basis for such period, as determined in accordance with GAAP (including acquisitions of IP Rights to the extent the cost
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thereof is treated as a capitalized expense in accordance with GAAP) and made in cash during such period.
“Capital Lease” means, as applied to any Person, any lease of any property by that Person as lessee which, in accordance with GAAP, but subject to the last sentence of Section 1.03(a), is required to be accounted for as a capital lease on the balance sheet of that Person.
“Cash Collateralize” means to pledge and deposit with or deliver to the Revolving Facility Administrative Agent, for the benefit of the Revolving Facility Administrative Agent, the Applicable L/C Issuer and the Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect thereof (as the context may require), cash or deposit account balances or, if the Applicable L/C Issuer benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Revolving Facility Administrative Agent and (b) the Applicable L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank 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 (any such bank being an “Approved Bank”), in each case with maturities of not more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A‑1 (or the equivalent thereof) or better by S&P or P‑1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, (e) investments substantially equivalent to those referred to in clauses (a) through (d) above denominated in Euros or any other foreign currency comparable in credit quality and tenor to those referred to above customarily used by business entities 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 or operating in such jurisdiction and (f) investments, classified in accordance with GAAP as Current Assets, in money market investment programs registered under the Investment Company Act of 1940 which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d).
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“Cayman Security Document” means (a) that certain Share Security Agreement between GlobeOp Financial Services (Switzerland) GmbH, as chargor, and the Original Administrative Agent, as security agent, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), and (b) each other Cayman Islands law governed document or instrument which creates or evidences or which is expressed to create or evidence any Lien granted or required to be granted pursuant to Section 7.14.
“CDOR Screen Rate” has the meaning specified in the definition of “Eurocurrency Rate”.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code.
“Change in Law” means the occurrence, after the Restatement Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Class” means (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Commitments, Extended Revolving Commitments of a given Extension Series, Refinancing Revolving Commitments of a given Refinancing Series, Incremental Term Loan Commitments of a given Incremental Series, Refinancing Term Commitments of a given Refinancing Series
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or Commitments in respect of Replacement Term Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Loans, Extended Revolving Loans of a given Extension Series, Refinancing Revolving Loans of a given Refinancing Series, 2017 Refinancing Term B-1 Loans, 2017 Refinancing Term B-2 Loans, Extended Term Loans of a given Extension Series, Incremental Term Loans of a given Incremental Series, Refinancing Term Loans of a given Refinancing Series or Replacement Term Loans established pursuant to the same amendment to this Agreement. Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class.
“Co-Borrower” has the meaning assigned to such term in Section 1.13(a).
“Co-Managers” means Citibank, N.A., Deutsche Bank Securities Inc. and RBC Capital Markets, each in its capacity as a co-manager.
“Collateral” means a collective reference to all personal property with respect to which Liens in favor of the Administrative Agent, for the benefit of itself and the Lenders, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.
“Collateral Documents” means a collective reference to the U.S. Security Agreement, the English Security Documents, the Lux Security Documents, the Lux Security Confirmation Agreement, the Swiss Security Documents, the Cayman Security Documents, the Irish Security Documents and other security documents as may be executed and delivered by the Loan Parties pursuant to the terms of Section 7.14, Section 7.19 or any of the Loan Documents.
“Commitment” means with respect to each Lender (i) as to each Revolving Lender, the Revolving Commitment of such Revolving Lender, (ii) as to each Term B-3 Lender, the Term B-3 Commitment of such Term B-3 Lender, (iii) as to each Term B-4 Lender, the Term B-4 Commitment of such Term B-4 Lender, (iv) as to each Term B-5 Lender, the Term B-5 Commitment of such Term B-5 Lender, (v) as to each Term B-6 Lender, the Term B-6 Commitment of such Term B-6 Lender, (vi) as to each Term B-7 Lender, the Term B-7 Commitment of such Term B-7 Lender, (vii) as to any Incremental Term Loan, the Incremental Term Loan Commitment of such Lender, (viii) as to any Extended Revolving Loans or Extended Term Loans, the Extended Revolving Commitments or the Commitments to provide such Extended Term Loans (as applicable) of such Lender, (ix) as to any Refinancing Revolving Loans or Refinancing Term Loans, the Refinancing Revolving Commitments or the Commitments to provide such Refinancing Term Loans (as applicable) of such Lender and (x) as to any Replacement Term Loans, the Commitments to provide such Replacement Term Loans of such Lender.
“Commitment Increase Amendment” has the meaning set forth in Section 2.01().
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
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“Company” has the meaning specified in the introductory paragraph hereto.
“Company Materials” has the meaning specified in Section 7.02.
“Compliance Certificate” means a certificate substantially in the form of Exhibit 7.02.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept 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 Section 3.05 and other technical, administrative or operational matters) that the Applicable Administrative Agent in consultation with the Company decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Applicable Administrative Agent in a manner substantially consistent with market practice (or, if the Applicable Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Applicable Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Applicable Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consolidated Cash Taxes” means, as of any date for the applicable period ending on such date with respect to the Parent and its Restricted Subsidiaries on a consolidated basis, the aggregate of all income, franchise and similar taxes (including penalties and interest), as determined in accordance with GAAP, to the extent the same are payable in cash with respect to such period.
“Consolidated Current Assets” means, with respect to any Person, the Current Assets of such Person and its Restricted Subsidiaries on a consolidated basis.
“Consolidated Current Liabilities” means, with respect to any Person and its Restricted Subsidiaries on a consolidated basis, all liabilities that, in accordance with GAAP, would be classified as current liabilities on the consolidated balance sheet of such Person, but excluding (a) the current portion of Indebtedness (including the Swap Termination Value of any Swap Contracts) to the extent reflected as a liability on the consolidated balance sheet of such Person, (b) the current portion of interest, (c) accruals for current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves, (e) deferred revenue and (f) any L/C Obligations or Revolving Loans.
20
21
22
minus
23
“Consolidated Funded Indebtedness” means, as of any date of determination with respect to the Parent and its Restricted Subsidiaries on a consolidated basis, without duplication, the sum of: (a) the outstanding principal amount of all obligations for borrowed money, whether current or long-term (including the Obligations) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all obligations arising under letters of credit (including standby and commercial but excluding letters of credit to the extent such letters of credit have been cash collateralized), bankers’ acceptances, bank guaranties and similar instruments and unreimbursed obligations under surety bonds; (c) all obligations in respect of the deferred purchase price of property or services (including non-contingent earn-out payments and other non-contingent deferred payments but excluding contingent earn-out payments, other contingent deferred payments and trade accounts payable in the ordinary course of business); (d) all Attributable Indebtedness; (e) all Guarantees with respect to outstanding
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Indebtedness of the types specified in clauses (a) through (d) above of another Person (except to the extent supported by a letter of credit); and (f) all Indebtedness of the types referred to in clauses (a) through (e) above of any partnership or joint venture (other than a joint venture that is itself a corporation, limited liability company or similar limited liability entity organized under the laws of a jurisdiction other than the United States or a state thereof) in which the Parent or any of its Restricted Subsidiaries is a general partner or joint venturer, except to the extent that such Indebtedness is expressly made non-recourse to such Person.
“Consolidated Net Income” means, for any period, for the Parent and its Restricted Subsidiaries on a consolidated basis, the net income (or loss) of the Parent and its Restricted Subsidiaries for that period determined in accordance with GAAP (excluding (a) extraordinary gains and extraordinary losses for such period and (b) the income (or loss) of any Person (other than a Restricted Subsidiary) in which the Parent or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Parent or such Restricted Subsidiary in the form of cash dividends or similar distributions).
“Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date less all Unrestricted Cash to (b) Consolidated EBITDA for the four fiscal quarters most recently ended for which financial statements were required to have been delivered pursuant to Section 7.01(a) or 7.01(b).
“Consolidated Net Leverage Ratio Test” means, as of any date of determination, the Consolidated Net Leverage Ratio shall not exceed 5.50:1.00.
“Consolidated Net Secured Funded Indebtedness” means, as of any date of determination, the Consolidated Funded Indebtedness of the Parent and its Restricted Subsidiaries on a consolidated basis that is secured by liens on the property of the Parent or any of its Restricted Subsidiaries; provided, however, that all 2017 Refinancing Term B-1 Loans, 2017 Refinancing Term B-2 Loans, Term B-3 Loans, Term B-4 Loans, Term B-5 Loans, Term B-6 Loans, Term B-7 Loans, Revolving Loans, Revolving Commitments and any Credit Agreement Refinancing Indebtedness or any other Permitted Refinancing or successive Permitted Refinancing with respect thereto shall at all times be deemed to be Consolidated Net Secured Funded Indebtedness for purposes of calculating the Consolidated Net Secured Leverage Ratio in connection with Section 2.01(f)(i)(B)(y).
“Consolidated Net Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Net Secured Funded Indebtedness as of such date less all Unrestricted Cash to (b) Consolidated EBITDA for the four fiscal quarters most recently ended (or, in the case of determinations described in Section 1.03(b)(ii) as occurring after the end of the applicable period, the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 7.01(a) or 7.01(b)).
“Consolidated Scheduled Funded Debt Payments” means, for any period with respect to the Parent and its Restricted Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal during such period on Consolidated Funded Indebtedness that constitutes Funded Debt (including the implied principal component of payments due on Capital Leases
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during such period), less the reduction in such scheduled payments resulting from voluntary prepayments or mandatory prepayments required pursuant to Section 2.05, in each case as applied pursuant to Section 2.05, as determined in accordance with GAAP.
“Consolidated Total Assets” means the consolidated total assets of the Parent and its Restricted Subsidiaries as set forth on the consolidated balance sheet of the Parent as of the most recent period for which financial statements were required to have been delivered pursuant to Sections 7.01(a) and (b).
“Continuing Director” means, as of any date of determination, any member of the board of directors or other equivalent governing body of the Parent who: (1) was a member of such board of directors or other equivalent governing body on the Restatement Effective Date or was nominated for election, elected or appointed, or was otherwise approved, by William C. Stone (or any estate, trust, corporation, partnership or other entity Controlled by him) or (2) was nominated for election, elected or appointed to such board of directors or other equivalent governing body by or with the approval of a majority of the Continuing Directors who were members of such board of directors or other equivalent governing body at the time of such nomination, election or appointment.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, the power to vote 20% or more of the Voting Stock.
“CPECs” shall mean the convertible preferred equity certificates, regardless of class or series, having a nominal value of one Euro each, issued by Lux Intermediate Holdco.
“Credit Agreement Refinancing Indebtedness” means (a) Permitted First Priority Refinancing Debt, (b) Permitted Junior Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, any Class of existing Loans (or any Class of unused Commitments), or any then‑existing Credit Agreement Refinancing Indebtedness (the “Refinanced Debt”); provided that (i) such Indebtedness has a maturity no earlier, and a Weighted Average Life to Maturity equal to or greater, than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount (or in the case of the Revolving Facility, commitments) (or accreted value, if applicable) of the Refinanced Debt plus accrued interest, fees, premiums (if any) and penalties thereon and fees and expenses associated with the refinancing, plus an amount equal to any existing commitments unutilized thereunder, (iii) the covenants and events of default of such Indebtedness are, taken as a whole,
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not materially more favorable to the investors providing such Indebtedness than those contained in the documentation governing or evidencing the Refinanced Debt (except for (x) covenants or other provisions applicable only to periods after the Maturity Date of the applicable Facility existing at the time of incurrence of such Credit Agreement Refinancing Indebtedness and (y) any financial maintenance covenant to the extent such covenant is also added for the benefit of the lenders under the Refinanced Debt, to the extent that any portion thereof remains outstanding) at the time of incurrence or issuance of such Credit Agreement Refinancing Indebtedness (provided that a certificate of a Responsible Officer delivered to the Applicable Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness stating that the Company has determined in good faith that such covenants and events of default satisfy the foregoing requirement shall be conclusive evidence that such covenants and events of default satisfy the requirement of this clause (iii)), (iv) the Effective Yield with respect such Credit Agreement Refinancing Indebtedness shall be determined by the Company and the lenders or other investors providing such Credit Agreement Refinancing Indebtedness, (v) unless such Credit Agreement Refinancing Indebtedness is incurred solely by means of extending or renewing then existing Indebtedness described in clause (a), (b) or (c) above without resulting in any Net Cash Proceeds, such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, and all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained, (vi) the direct borrower or issuer with respect to such Credit Agreement Refinancing Indebtedness shall be the Company or, with respect to any such debt in the form of Refinancing Term Loans incurred to extend, renew, replace, repurchase, retire or refinance Refinanced Debt of a Designated Borrower, such Designated Borrower, (vii) such Indebtedness is not at any time guaranteed by any Person other than Guarantors with respect to the applicable Refinanced Debt (provided that any Credit Agreement Refinancing Indebtedness with respect to the Foreign Obligations (or any portion thereof) that is directly incurred by the Company shall not be guaranteed by any Person other than the Domestic Guarantors), (viii) to the extent secured, (A) such Indebtedness will be subject to the terms of an Intercreditor Agreement and (B) Indebtedness is not secured by property other than the property constituting Collateral, with respect to the applicable Refinanced Debt (provided that any Credit Agreement Refinancing Indebtedness with respect to the Foreign Obligations (or any portion thereof) that is directly incurred by the Company shall not be secured by property other than property constituting Collateral solely with respect to the Direct U.S. Loan Party Obligations), (ix) if the Refinanced Debt is subordinated in right of payment to, or to the Liens securing, the Obligations, then any Credit Agreement Refinancing Indebtedness shall be subordinated in right of payment to, or to the Liens securing, the Obligations, as applicable, on terms (x) at least as favorable (taken as a whole) to the Lenders as those contained in the documentation governing or evidencing the Refinanced Debt (provided that a certificate of a Responsible Officer delivered to the Applicable Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness stating that the Company has determined in good faith that such subordination terms satisfy the foregoing requirement shall be conclusive evidence that such subordination terms satisfy the requirement of this clause (x)) or (y) otherwise reasonably acceptable to the Administrative Agents, (x) any Credit Agreement Refinancing Indebtedness shall be pari passu or (if incurred pursuant to clause (b) or (c) of this definition) junior in right of payment and, if secured, secured on a pari passu or (if incurred pursuant to clause (b) of this definition) junior basis with respect to security, with respect to (A)
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in the case of any Credit Agreement Refinancing Indebtedness incurred by a Designated Borrower under clause (d) of this definition, the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans and the Term B-7 Loans (and any Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by a Designated Borrower with respect thereto) and (B) any other Credit Agreement Refinancing Indebtedness, the Revolving Facility and each Term Facility (other than the Term B-2 Facility (or any Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by a Designated Borrower with respect thereto)), to the extent outstanding, (xi) (A) no Credit Agreement Refinancing Indebtedness incurred by a Designated Borrower under clause (d) of this definition shall be (except with the proceeds of Credit Agreement Refinancing Indebtedness in respect thereof) voluntarily or mandatorily prepaid prior to repayment in full of (or, if junior in right of payment or as to security, on a junior basis with respect to) the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans or the Term B-7 Loans (and any Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by a Designated Borrower with respect thereto) unless, solely in the case of such Credit Agreement Refinancing Indebtedness that is pari passu in right of payment and security with the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans or the Term B-7 Loans (and any Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by a Designated Borrower with respect thereto), accompanied by at least a ratable payment of the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans or the Term B-7 Loans (and any such Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by a Designated Borrower) then outstanding, and any such Credit Agreement Refinancing Indebtedness that is pari passu in right of payment and security with the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans or the Term B-7 Loans (and any Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by a Designated Borrower with respect thereto) may participate with the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans or the Term B-7 Loans (and any such Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by a Designated Borrower) then outstanding on a pro rata basis or on less than a pro rata basis (but not greater than pro rata basis) in any voluntary or mandatory prepayments hereunder and (B) no other Credit Agreement Refinancing Indebtedness shall be (except with the proceeds of Credit Agreement Refinancing Indebtedness in respect thereof) voluntarily or mandatorily prepaid prior to repayment in full of (or, if junior in right of payment or as to security, on a junior basis with respect to) the 2017 Refinancing Term B-1 Loans, the Term B-3 Loans, the Term B-5 Loans or the Term B-6 Loans (and any Refinancing Term Loans, Extended Term Loans and Replacement Term Loans incurred by the Company in respect thereof) unless, solely in the case of such Credit Agreement Refinancing Indebtedness that is incurred under clause (d) of this definition and is pari passu in right of payment and security with the 2017 Refinancing Term B-1 Loans, the Term B-3 Loans, the Term B-5 Loans or the Term B-6 Loans (and any Refinancing Term Loans, Extended Term Loans and Replacement Term Loans incurred by the Company in respect thereof), accompanied by at least a ratable payment of the 2017 Refinancing Term B-1 Loans, the Term B-3 Loans, the Term B-5 Loans or the Term B-6 Loans (and any such Refinancing Term Loans, Extended Term Loans and Replacement Term Loans), and any such Credit Agreement Refinancing Indebtedness incurred under clause (d) of this definition that is pari passu in right of payment and security with the 2017 Refinancing Term B-1 Loans, the Term B-3 Loans, the Term B-5 Loans or the Term B-6 Loans (and any Refinancing Term Loans, Extended Term Loans and Replacement Term Loans incurred by the Company in respect thereof) may participate with the
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2017 Refinancing Term B-1 Loans, the Term B-3 Loans, the Term B-5 Loans and the Term B-6 Loans (and any such Refinancing Term Loans, Extended Term Loans and Replacement Term Loans) on a pro rata basis or on less than a pro rata basis (but not greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, (xii) with respect to any Credit Agreement Refinancing Indebtedness incurred pursuant to clause (d) of this definition, the holders of such Indebtedness shall have become bound by the Re-Allocation Agreement in a manner satisfactory to the Administrative Agents and (xiii) the proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding loans (and in the case of the Revolving Facility, pro rata permanent commitment reductions) under the applicable Facility being so refinanced.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“CS” means Credit Suisse AG, Cayman Islands Branch and any successor thereto by merger, consolidation or otherwise.
“Currency” means Dollars or any Alternative Currency.
“Current Assets” means, with respect to any Person, all assets of such Person that, in accordance with GAAP, would be classified as current assets on the balance sheet of a company conducting a business the same as or similar to that of such Person, after deducting appropriate and adequate reserves therefrom in each case in which a reserve is proper in accordance with GAAP, but excluding (i) cash, (ii) Cash Equivalents, (iii) Swap Contracts to the extent that the mark-to-market Swap Termination Value would be reflected as an asset on the consolidated balance sheet of such Person, (iv) deferred financing fees and (v) payment for deferred taxes.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Applicable Administrative Agent in accordance with the conventions (including any credit spread adjustment) for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Applicable Administrative Agent decide that any such convention is not administratively feasible for the Applicable Administrative Agent, then the Applicable Administrative Agent may establish another convention in their reasonable discretion.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally and in connection with Luxembourg (i) insolvency proceedings (faillite) within the meaning of Articles 437 ff. of the Luxembourg Commercial Code or any other insolvency proceedings pursuant to the European Insolvency Regulation, (ii) controlled management (gestion contrôlée) within the meaning of the grand ducal regulation of 24 May 1935 on controlled management, (iii) voluntary arrangement with creditors (concordat préventif de faillite) within the meaning of the law of 14 April 1886 on arrangements to prevent
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insolvency, as amended, (iv) suspension of payments (sursis de paiement) within the meaning of Articles 593 ff. of the Luxembourg Commercial Code and (v) voluntary or compulsory winding-up pursuant to the law of 10 August 1915 on commercial companies, as amended.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus the Applicable Rate, if any, applicable to Base Rate Loans under the Revolving Facility plus (iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate Loan, a SOFR Loan or a SONIA Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate for Eurocurrency Rate Loans under the Revolving Facility plus 2% per annum.
“Defaulting Lender” means, subject to Section 2.15(b), any Lender that, as determined by the Applicable Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit, within three Business Days of the date required to be funded by it hereunder, unless such Lender notifies the Applicable Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more of the conditions precedent to funding (each of which conditions precedent, together with any applicable Default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the Company or the Applicable Administrative Agent in writing that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after request by the Applicable Administrative Agent, to confirm in writing that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Applicable Administrative Agent and the Company), (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (e) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Applicable Administrative Agent that a Lender is a Defaulting Lender
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under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) upon delivery of written notice of such determination to the Company and each Lender.
“Designated Borrower” has the meaning specified in the introductory paragraph hereto.
“Designated Borrower 1” has the meaning specified in the introductory paragraph hereto.
“Designated Borrower 2” has the meaning specified in the introductory paragraph hereto.
“Designated U.S. Co-Borrower” has the meaning specified in the introductory paragraph hereto.
“Designating Lender” has the meaning specified in Section 1.13(d).
“Direct U.S. Loan Party Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Company, each Domestic Borrower and any Domestic Guarantor arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit (other than any guarantee of, or related obligations, covenants and duties with respect to, the Foreign Obligations), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Company or any Domestic Guarantor of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing shall also include (a) all obligations under any Secured Swap Contract between any Domestic Loan Party and any Lender or Affiliate of a Lender (excluding any Excluded Swap Obligations), (b) all obligations under any Secured Treasury Management Agreement between any Domestic Loan Party and any Lender or Affiliate of a Lender and (c) all guarantees by any Domestic Loan Party of obligations of any other Domestic Loan Party described in preceding clause (a) or (b).
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Loan Party or any Restricted Subsidiary thereof (including the Equity Interests of any such Subsidiary), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding any Involuntary Disposition. The term “Disposition” shall not include any issuance of Equity Interests by the Parent.
“Disqualified Capital Stock” means Equity Interests that (a) require the payment of any dividends (other than dividends payable solely in shares of Qualified Capital Stock), (b) mature or are mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof, 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), prior to the date that is 91 days after the Latest Maturity Date (other than (i) upon payment in
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full of the Obligations and termination of the Commitments or (ii) upon an asset sale or change of control, provided, that any payment required pursuant to this clause (ii) is contractually subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agents) or (c) are convertible or exchangeable, automatically or at the option of any holder thereof, into any Indebtedness, Equity Interests or other assets other than Qualified Capital Stock.
“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Applicable Administrative Agent or the Applicable L/C Issuer, as the case may be, 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 Alternative Currency.
“Domestic Borrower” means the Company and each Co-Borrower that is a Domestic Subsidiary.
“Domestic Guarantors” means (i) with respect to the Obligations of the Company and the other Domestic Loan Parties, (a) each Domestic Subsidiary of the Parent identified as a “Domestic Guarantor” on the signature pages hereto, (b) the Parent, (c) each Domestic Borrower and (d) each other Person that joins as a Domestic Guarantor pursuant to Section 7.12, (ii) with respect to the Foreign Obligations, the Company and each Person described in subclauses (a), (b), (c) and (d) of preceding clause (i), and (iii) with respect to obligations under any Secured Swap Contract between any Domestic Loan Party (other than the Domestic Borrowers) and any Lender or Affiliate of a Lender and obligations under any Secured Treasury Management Agreement between any Domestic Loan Party (other than the Domestic Borrowers) and any Lender or Affiliate of a Lender, the Domestic Borrowers and each other Domestic Loan Party not party to such Secured Swap Contract or Secured Treasury Management Agreement, as the case may be.
“Domestic Loan Party” means the Company, each other Domestic Borrower, the Parent and each of the other Domestic Guarantors.
“Domestic Non-Loan Party” means each Domestic Subsidiary that is not a Domestic Loan Party.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia and whose Equity Interests are not held, directly or indirectly, by a CFC or Foreign Holdco. For the avoidance of doubt, neither the Designated U.S. Co-Borrower nor SS&C Financial Services LLC (f/k/a GlobeOp Financial Services LLC) shall be treated as Domestic Subsidiaries.
“Dutch Auction” means an auction (an “Auction”) conducted by the Parent or one of its Subsidiaries in order to purchase Term Loans of any Class in accordance with the following procedures or such other procedures as may be agreed to between the Administrative Agent and the Company:
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“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Yield” means, as to any Loans of any Facility, the effective yield on such Loans as reasonably determined by the Applicable Administrative Agent in consultation with the Parent, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the life of such Loans and (y) the four years following the date of incurrence thereof) payable generally to Lenders making such Loans, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the relevant Lenders. The Applicable Administrative Agent shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable judgment.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 11.06(b)(iii), (v) and (vii) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“English Security Documents” means (a) the English law governed share pledge in relation to the shares in Financial Models Corporation Limited, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), entered into between the Designated Borrower 2, as company, and the Original Administrative Agent; (b) the English law governed debenture, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), entered into among Financial Models Corporation Limited, SS&C Solutions Limited and GlobeOp Financial Services Limited, as chargors, and the Original Administrative Agent, and (c) each other English law governed document or instrument which creates or evidences or which is expressed to create or evidence any Lien granted or required to be granted pursuant to Section 7.14.
“Environmental Laws” means any and all federal, state, local, foreign and other applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the
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environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Parent or any of its Restricted Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, with respect to any Person, any of the shares of capital stock of (or other ownership or profit interests in) such Person, any of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, any of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and any of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with a Loan Party within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan (other than an event for which the 30-day notice period is waived); (b) the withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in insolvency; (d) the filing of a notice of intent to terminate or the treatment of a Pension Plan amendment as a termination under Section 4041(c) or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; or (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
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“EU Treaty” means the Treaty on European Union.
“EURIBO Rate” means the rate per annum equal to the European Money Markets Institute EURIBO Rate (“BFEA EURIBOR”), as published by Reuters (or another commercially available source providing quotations of BFEA EURIBOR as designated by the Applicable Administrative Agent from time to time) at approximately 11:00 a.m., London time, two TARGET Days prior to the commencement of such Interest Period, for deposits in Euro (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (the “EURIBOR Screen Rate”); provided that to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “EURIBO Rate” shall be the interest rate per annum determined by the Applicable Administrative Agent to be the average of the rates per annum at which deposits in Euro are offered for such relevant Interest Period to major banks in the European interbank market by the Applicable Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two TARGET Days prior to the beginning of such Interest Period.
“EURIBOR Screen Rate” has the meaning specified in the definition of “EURIBOR Rate”.
“Euro” and “EUR” means the single currency of the Participating Member States introduced in accordance with the provisions of Article 109(i)4 of the EU Treaty.
“Eurocurrency Rate” means, with respect to an Interest Period for a Eurocurrency Rate Loan, the rate per annum equal to (a) with respect to Term Loans denominated in Dollars only, the London interbank offered rate as administered by ICE Benchmark Administration (or any Person who takes over the administration of such rate) for deposits in Dollars (as set forth on the Reuters LIBOR01 page or any successor thereto or any other service selected by the Administrative Agent which has been nominated by the ICE Benchmark Administration (or any successor) as an authorized information vendor for the purpose of displaying such rates; in each case the “LIBOR01 Screen Rate”), determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period for deposits in Dollars for delivery on the first day of such Interest Period with a term equivalent to such Interest Periodin respect of any Eurocurrency Rate Loan denominated in Euros, the EURIBO Rate, (b) in respect of any Eurocurrency Rate Loan denominated in Euros, the EURIBO Rate, (c) in respect of any Eurocurrency Rate Loan denominated in Canadian Dollars, the rate per annum equal to the average of the annual yield rates applicable to Canadian Dollar banker’s acceptances at or about 10:00 a.m. (Toronto, Ontario time) on the first day of such Interest Period (or if such day is not a Banking Day, then on the immediately preceding Banking Day) as reported on the “CDOR Page” (or any display substituted therefor) of Refinitiv Benchmark Services (UK) Limited (or such other page or commercially available source displaying Canadian interbank bid rates for Canadian Dollar bankers’ acceptances as may be designated by the Administrative Agents from time to time) for a term equivalent to such Interest Period (or if such Interest Period is not equal to a number of months, for a term equivalent to the number of months closest to such Interest Period) (the “CDOR Screen Rate”), (d) (i) in respect of the 2017 Refinancing Term B-1 Loans and the 2017 Refinancing Term B-2 Loans that are Eurocurrency Rate Loans, in the event the rate referenced in clause (a) does not appear on such page or services or if such page or services shall cease to be available, the rate per
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annum determined by the Administrative Agent to be the rate at which it could borrow funds in Dollars (or, in respect of Revolving Loans or Letters of Credit denominated in an Alternative Currency, such Alternative Currency) for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by Credit Suisse AG in the London interbank Eurocurrency market, or (ii) in respect of all other Loans that are Eurocurrency Rate Loansc) if the Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”), then the Eurocurrency Rate shall be the Interpolated Rate, or (ed) in the event the rate referenced in the preceding clause (dc) is not available at such time for any other reason, a comparable successor rate that is, at such time, broadly accepted by the syndicated loan market for loans denominated in Dollarsthe applicable Alternative Currency in lieu of the “Screen Rate” or, if no such broadly accepted comparable successor rate exists at such time, a successor index rate as the Administrative Agent may determine with the consent of the Company; provided that in the case of this clause (ed) such successor index rate shall not become effective if the Administrative Agent shall have received a written objection from Lenders constituting the Required Lenders within ten Business Days of distributing the proposed successor index rate to the Lenders; provided, further, that in no event shall the Eurocurrency Rate be less than zero.
“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the definition of “Eurocurrency Rate”. Eurocurrency Rate Loans mayshall be denominated in Dollars or, in the case of Revolving Loans, in an Alternative Currency. All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans or SONIA Loans.
“European Insolvency Regulation” means regulation (EU) 2015/848 of the European Parliament and of the Council of May 20, 2015 on insolvency proceedings (recast).
“Event of Default” has the meaning specified in Section 9.01.
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“Excess Cash Flow Period” means any fiscal year of the Company, commencing with the fiscal year ending on or about December 31, 2018.
“Excess Foreign Entity Stock” has the meaning set forth in the definition of “Excluded Property”.
“Excluded Property” means, (a) with respect to any Loan Party, any owned or leased real property, (b) with respect to any Domestic Loan Party, any personal property that either (i) the attachment or perfection of a Lien thereon is not governed by the UCC or (ii) a Lien thereon is not effected by appropriate evidence of such Lien being filed in either the United States
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Copyright Office or the United States Patent and Trademark Office, (c) with respect to any Collateral securing the Direct U.S. Loan Party Obligations, all voting Equity Interests and CPECs entitled to vote in excess of 65% of such voting interests of any First Tier Foreign Subsidiary or Foreign Holdco (and any such excluded Equity Interests or CPECs in any such First Tier Foreign Subsidiary or Foreign Holdco in excess of such amount shall be referred to herein as “Excess Foreign Entity Stock”), (d) with respect to any Loan Party, any property which is subject to a Lien of the type described in Section 8.01(i) pursuant to documents which prohibit such Loan Party from granting any other Liens in such property to secure the Obligations (or the relevant portion thereof, as applicable), (e) with respect to any Loan Party, any General Intangible (as defined in the UCC), permit, lease, license, contract or other Instrument (as defined in the UCC) of such Loan Party to the extent that the grant of a security interest in such General Intangible, permit, lease, license, contract or other Instrument in the manner contemplated by the Collateral Documents, under the terms thereof or under applicable Law, is prohibited and would result in the termination thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter such Loan Party’s rights, titles and interests thereunder (including upon the giving of notice or the lapse of time or both); provided that (i) any such limitation described in this clause (e) on the security interests granted hereunder shall only apply to the extent that any such prohibition could not be rendered ineffective pursuant to the UCC or any other applicable Law or principles of equity and (ii) in the event of the termination or elimination of any such prohibition or the requirement for any consent contained in any applicable Law, General Intangible, permit, lease, license, contract or other Instrument, to the extent sufficient to permit any such item to become Collateral, or upon the granting of any such consent, or waiving or terminating any requirement for such consent, a security interest in such General Intangible, permit, lease, license, contract or other Instrument shall be automatically and simultaneously granted hereunder and shall be included as Collateral, (f) with respect to any Loan Party, any motor vehicles, (g) with respect to any Loan Party, any assets of any Subsidiary of the Parent that is subject to regulatory capital or similar requirements to the extent that the provision of such security or similar interest would result in an increase to such regulatory capital or similar requirement or other administrative burden, in each case which is disproportionate to the benefit obtained by the Lenders and the other holders of the applicable Obligations, as determined in good faith by the Company in consultation with the Administrative Agent (it being acknowledged and agreed that, as of the Restatement Effective Date, (x) the burden of obtaining guarantees and security for the Foreign Obligations from the Parent’s existing Subsidiaries organized in the Republic of Ireland and from GlobeOp Markets Limited, Prime Management Limited, SS&C Fund Services (Cayman) Ltd. and SS&C GlobeOp (Luxembourg) S.à r.l., in each case, disproportionately exceeds the benefit obtained by the holders of the Foreign Obligations and (y) the burden of obtaining guarantees and security for the Direct U.S. Loan Party Obligations and the Foreign Obligations from Second Street Securities, Inc. disproportionately exceeds the benefit obtained by the holders of the Direct U.S. Loan Party Obligations and the Foreign Obligations), (h) any assets of any Unrestricted Subsidiary, (i) with respect to any Loan Party, Margin Stock and (j) with respect to any Loan Party, any “intent-to-use” application for registration of a trademark or service mark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair
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the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law. Other assets shall be deemed to be “Excluded Property” if the Administrative Agent and the Company agree in writing that the cost, burden or consequences (including adverse tax consequences) of obtaining or perfecting a security interest in such assets is excessive in relation to the value of such assets as Collateral.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guaranty of such Guarantor becomes effective with respect to such related Swap Obligation.
“Excluded Taxes” means, with respect to any of the Administrative Agents, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of a Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), (i) by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located or (ii) by any jurisdiction as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (or any political subdivision thereof), other than any such connection arising solely from such recipient having executed, delivered or performed its obligations, received a payment under, received a perfected security interest under, engaged in any other transaction contemplated by, or enforced, this Agreement or any other Loan Document, (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which such Borrower is located, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Company under Section 11.13), any withholding Tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change of Law) to comply with Section 3.01(f), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from such Borrower with respect to such withholding Tax pursuant to Section 3.01(a), and (d) any withholding Taxes imposed under FATCA.
“Existing 2010 Target Note Purchase Agreement” means the Note Purchase Agreement, dated August 9, 2010, by and among the Target and the purchasers named therein, as amended by that certain First Amendment to Note Purchase Agreement dated as of November 14, 2017 and by that certain Second Amendment to Note Purchase Agreement dated as of November 14, 2017.
“Existing 2010 Target Senior Notes” means the unsecured (i) 5.06% Series C Senior Notes (as defined therein) due 2018 and (ii) 5.42% Series D Senior Notes (as defined therein) due 2020 issued by the Target pursuant to the Existing 2010 Target Note Purchase Agreement.
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Existing 2017 Target Note Purchase Agreement” means the Master Note Purchase Agreement, dated November 14, 2017, by and among the Target and the purchasers party thereto.
“Existing 2017 Target Senior Notes” means the unsecured (i) 3.55% Series 2017A, Tranche A Senior Notes (as defined therein) due 2023, (ii) 3.82% Series 2017A Tranche B Senior Notes (as defined therein) due 2025, (iii) 4.04% Series 2017A, Tranche D Senior Notes (as defined therein) due 2028, (iv) 4.14% Series 2017A, Tranche E Senior Notes (as defined therein) due 2030 and (v) 4.29% Series 2017A, Tranche F Senior Notes (as defined therein) due 2033 issued by the Target pursuant to the Existing 2017 Target Note Purchase Agreement, including the Target Tranche C Senior Notes.
“Existing Credit Agreement” has the meaning set forth in the recitals.
“Existing Revolver Tranche” has the meaning set forth in Section 2.18(b).
“Existing Senior Notes” means the 5.875% unsecured senior notes issued by the Parent pursuant to the Existing Senior Notes Indenture.
“Existing Senior Notes Condition” has the meaning set forth in Section 8.03(t).
“Existing Senior Notes Indenture” means the Indenture, dated as of July 8, 2015, among the Parent, the Company, the other Domestic Guarantors and the Existing Senior Notes Trustee.
“Existing Senior Notes Trustee” means Wilmington Trust, National Association, in its capacity as trustee under the Existing Senior Notes Indenture.
“Existing Target Note Purchase Agreements” means the Existing 2010 Target Note Purchase Agreement and the Existing 2017 Target Note Purchase Agreement.
“Existing Target Senior Notes” means the Existing 2010 Target Senior Notes and the Existing 2017 Target Senior Notes.
“Existing Target Senior Notes Condition” has the meaning set forth in Section 8.03(q).
“Existing Target Senior Notes Escrow” has the meaning set forth in Section 8.03(q).
“Existing Target Senior Notes Waiting Period” means the period from the Restatement Effective Date until the first Business Day on or immediately following the day that is 15 days after the Restatement Effective Date.
“Existing Target Credit Agreement” means that certain Credit Agreement, dated as of October 1, 2014, among, inter alia, the Target, Bank of America, N.A., as Administrative Agent, and the lenders party thereto from time to time, as such agreement has been amended, modified and supplemented from time to time prior to the Restatement Effective Date.
“Existing Term Loan Tranche” has the meaning set forth in Section 2.18(a).
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“Extended Revolving Commitments” has the meaning set forth in Section 2.18(b).
“Extended Revolving Loans” means one or more Classes of revolving credit loans that result from an Extension Amendment.
“Extended Term Loans” has the meaning set forth in Section 2.18(a).
“Extending Revolving Lender” has the meaning set forth in Section 2.18(c).
“Extending Term Lender” has the meaning set forth in Section 2.18(c).
“Extension” means the establishment of an Extension Series by amending a Loan or Commitment pursuant to the terms of Section 2.18 and the applicable Extension Amendment.
“Extension Amendment” has the meaning set forth in Section 2.18(d).
“Extension Election” has the meaning set forth in Section 2.18(c).
“Extension Request” means any Term Loan Extension Request or a Revolver Extension Request, as the case may be.
“Extension Series” means any Term Loan Extension Series or a Revolver Extension Series, as the case may be.
“Extraordinary Receipt” means the receipt by the Parent or its Restricted Subsidiaries of any casualty insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace, restore or repair, or compensate for the loss of, such equipment, fixed assets or real property; provided, however, that an Extraordinary Receipt shall not include cash receipts from proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments to the extent that such proceeds, awards or payments (a) in respect of loss or damage to equipment, fixed assets or real property are applied (or in respect of which expenditures were previously incurred) to replace or repair the equipment, fixed assets or real property in respect of which such proceeds were received or reinvested in operating assets in accordance with the terms of Section 2.05(b)(vi) or (b) are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto.
“Eze” means the “Acquired Business” as such term is defined in the Incremental B-5 Amendment.
“Eze Acquisition” means the acquisition by the Company of Eze pursuant to the Eze Acquisition Agreement.
“Eze Acquisition Agreement” means the “Acquisition Agreement” as such term is defined in the Incremental B-5 Amendment.
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“Eze Transactions” means, collectively, (a) the consummation of the Eze Acquisition on the Incremental B-5 Effective Date and the other transactions contemplated by the Eze Acquisition Agreement on or prior to the Incremental B-5 Effective Date, (b) the effectiveness of the Term B-5 Loans under this Agreement pursuant to the Incremental B-5 Amendment and (c) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.
“Facility” means any Term Facility, the Revolving Facility, any Class of Extended Revolving Commitments and/or any Class of Refinancing Revolving Commitments, as the context may require.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Restatement Effective Date (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 14714(b)(1) of the Internal Revenue Code and any intergovernmental agreements (and related legislation or official administrative guidance) implementing the foregoing.
“FCPA” has the meaning set forth in Section 6.22(a).
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by depository institutions brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) of the quotations for such day on such transactions received by the Applicable Administrative Agent from three depository institutions brokers of recognized standing selected by the Applicable Administrative Agent, as determined by the Applicable Administrative Agent; provided, further, that if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Letter” means that certain second amended and restated fee letter dated as of February 15, 2018, by and among Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc., Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Deutsche Bank AG Cayman Islands Branch, JPMorgan Chase Bank, N.A., Royal Bank of Canada, RBC Capital Markets and the Company, as amended, restated, supplemented and otherwise modified from time to time.
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“First Amendment” means that certain First Amendment to Credit Agreement, dated as of the First Amendment Effective Date, among the Parent, each Borrower, the Guarantors, the Lenders party thereto and the Required Lenders.
“First Amendment Effective Date” means March 2, 2017.
“First Repricing Amendment” means that certain First Repricing Amendment to Credit Agreement, dated as of January 31, 2020, among the Borrowers, the Administrative Agents and Lenders party thereto.
“First Repricing Amendment Effective Date” means the date on which all of the conditions contained in Section 3 of the First Repricing Amendment have been satisfied or waived by the Administrative Agent.
“First Tier Foreign Subsidiary” means each Foreign Subsidiary that is owned, in whole or in part, directly by one or more Domestic Loan Parties.
“Flex Provisions” has the meaning assigned to such term in Section 11.01.
“Floor” means a rate of interest equal to (i) with respect to the Term B-6 Loans and the Term B-7 Loans, 0.50% and, (ii) with respect to the Term B-3 Loans, the Term B-4 Loans and the Term B-5 Loans, 0.00% and (iii) with respect to the Revolving Loans, 0.00%.
“Foreign Borrower” means each Borrower that is not a Domestic Borrower.
“Foreign Collateral Documents” means any Collateral Document that secures only the Foreign Obligations.
“Foreign Guarantors” means (i) with respect to the Foreign Obligations, (A) each Foreign Subsidiary and each Foreign Holdco of the Parent identified as a “Foreign Guarantor” on the signature pages hereto, (B) each Foreign Borrower, (C) each Target Foreign Subsidiary that is required to become a Foreign Guarantor pursuant to Section 7.12 (provided that no Target Foreign Subsidiary shall be required to become a Foreign Guarantor until three months (or such longer period as the Administrative Agent, in its sole discretion, shall determine) after the Restatement Effective Date) and (D) each Person that joins as a Foreign Guarantor pursuant to Section 7.12, and (ii) with respect to obligations under any Secured Swap Contract between any Foreign Loan Party (other than the Foreign Borrowers) and any Lender or Affiliate of a Lender and obligations under any Secured Treasury Management Agreement between any Foreign Loan Party (other than the Foreign Borrowers) and any Lender or Affiliate of a Lender, the Foreign Borrowers and each other Foreign Loan Party not party to such Secured Swap Contract or Secured Treasury Management Agreement, as the case may be. For the avoidance of doubt, each Foreign Borrower shall be a Foreign Guarantor of the Foreign Obligations of the other Foreign Borrowers.
“Foreign Holdco” means a Domestic Subsidiary substantially all of the assets of which are Equity Interests in (or Equity Interests in and Indebtedness of) one or more CFCs or Foreign Holdcos.
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“Foreign Lender” means, for any Borrower, any Lender that is organized under the Laws of a jurisdiction other than that in which such Borrower is resident for tax purposes (including such a Lender when acting in the capacity of L/C Issuer). For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Loan Party” means each of the Foreign Borrowers and each of the Foreign Guarantors.
“Foreign Non-Loan Party” means each Foreign Subsidiary that is not a Foreign Loan Party.
“Foreign Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Foreign Borrowers and any Foreign Guarantor arising under any Loan Document or otherwise with respect to the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans and the Term B-7 Loans, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Foreign Borrowers or any Foreign Guarantor of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing shall also include (a) all obligations under any Secured Swap Contract between any Foreign Loan Party and any Lender or Affiliate of a Lender (excluding any Excluded Swap Obligations), (b) all obligations under any Secured Treasury Management Agreement between any Foreign Loan Party and any Lender or Affiliate of a Lender and (c) all guarantees by any Foreign Loan Party of obligations of any other Foreign Loan Party described in preceding clause (a) or (b).
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the L/C Issuers, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funded Debt” of any Person means Indebtedness for borrowed money of such Person that by its terms matures more than one (1) year after the date of its creation or matures within one (1) year from any date of determination but is renewable or extendible, at the option of such Person, to a date more than one (1) year after such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one (1) year after such date.
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“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “Primary Obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantor” means each Domestic Guarantor and each Foreign Guarantor; provided, that in no event shall a CFC or Foreign Holdco ever be, or be required to be, a Guarantor of any Direct U.S. Loan Party Obligations.
“Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders pursuant to Article IV.
“Guaranty and Security Principles” means the Guaranty and Security Principles set forth on Exhibit 1.10.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
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infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Honor Date” has the meaning set forth in Section 2.03(c).
“Immaterial Subsidiary” means, on any date, any Restricted Subsidiary of the Parent (other than the Borrowers) that (i) does not have assets in excess of 3.0% of Consolidated Total Assets as of the date of the most recent Audited Financial Statements delivered pursuant to Section 7.01 prior to such date, (ii) does not contribute in excess of 3.0% of Consolidated EBITDA as of the date of the most recent financial statements delivered pursuant to Section 7.01 prior to such date and (iii) has been designated as such by the Company in a written notice delivered to the Administrative Agents (other than any such Subsidiary as to which the Company has revoked such designation by written notice to the Administrative Agents); provided, that if (x) the aggregate assets of Immaterial Subsidiaries at any time exceeds 12.5% of Consolidated Total Assets or (y) the Immaterial Subsidiaries, in the aggregate, contribute in excess of 12.5% of Consolidated EBITDA, in each case, as of the date of the most recent financial statements delivered pursuant to Section 7.01 prior to such date, the Company shall revoke the designation of one or more Subsidiaries as “Immaterial Subsidiaries” such that, after giving effect to such revocation, (A) the aggregate assets of Immaterial Subsidiaries shall be less than 12.5% of Consolidated Total Assets and (B) the contribution of Immaterial Subsidiaries shall be less than 12.5% of Consolidated EBITDA, in each case, as of the date of the most recent financial statements delivered pursuant to Section 7.01 prior to such date.
“Impacted Interest Rate” has the meaning set forth in the definition of “Eurocurrency Rate”.
“Incremental B-5 Amendment” means that certain Commitment Increase Amendment, dated as of the Incremental B-5 Effective Date, among, inter alios, the Company, the other Loan Parties party thereto, the Term B-5 Lender party thereto and the Administrative Agent.
“Incremental B-5 Effective Date” has the meaning assigned to such term in the Incremental B-5 Amendment.
“Incremental B-6/B-7 Amendment” means that certain Incremental Joinder, dated as of the Incremental B-6/B7 Effective Date, among, inter alios, the Borrowers, the other Loan Parties party thereto, the Term B-6 Lenders party thereto, the Term B-7 Lenders party thereto and the Administrative Agent.
“Incremental B-6/B-7 Effective Date” has the meaning assigned to such term in the Incremental B-6/B-7 Amendment.
“Incremental Joinder” means a joinder agreement with respect to (A) $5,045,794,683.73 of Incremental Term Loans shall be available to the Company as Term B-3 Loans, (B) $1,800,000,000 of Incremental Term Loans shall be available to Designated Borrower 1 as Term B-4 Loans, and (C) $100,000,000 of increase in Aggregate Revolving Commitments, which joinder shall set forth certain terms (including pricing) of such Term B-3 Loans and Term B-4 Loans and the increase in respect of the Aggregate Revolving Commitments (as applicable), in
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each case upon the satisfaction of the conditions set forth in such joinder, substantially in the form of Exhibit 2.01(e), executed by the Company, the Designated Borrowers, the Administrative Agent and each Lender making such commitments available to the Company and the Designated Borrowers and in form and substance reasonably satisfactory to each of them.
“Incremental Series” means all Incremental Term Loans and Incremental Term Loan Commitments that are established as a separate Class of Term Loans or Term Commitments (as applicable) pursuant to the same Commitment Increase Amendment (or any subsequent Commitment Increase Amendment to the extent such Commitment Increase Amendment expressly provides that the Incremental Term Loans or Incremental Term Loan Commitments as provided for therein are intended to be part of any previously established Incremental Series) and that provide for the same maturity, Effective Yield (other than, for this purpose, any original issue discount or upfront fees), if applicable, and amortization schedule.
“Incremental Term Loan” has the meaning provided in Section 2.01(e).
“Incremental Term Loan Agreement” means, with respect to an Incremental Term Loan, a joinder agreement in substantially the form of Exhibit 1.01(a) or such other form as is satisfactory to the Administrative Agent and the Company, in each case as executed by the Loan Parties, one or more Lender(s) providing an Incremental Term Loan Commitment and the Administrative Agent.
“Incremental Term Loan Commitment” means, as to any Lender, its obligation to make its portion of an Incremental Term Loan to the Company pursuant to Section 2.01(e) in the principal amount set forth in the applicable Incremental Term Loan Agreement.
“Incremental Term Loan Facility” means, at any time, (a) on or prior to the closing date under an Incremental Term Loan Agreement, the aggregate amount of the Incremental Term Loan Commitments set forth in such Incremental Term Loan Agreement at such time and (b) thereafter, the aggregate principal amount of the Incremental Term Loans of all Lenders made pursuant to such Incremental Term Loan Commitments at such time.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
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For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than (i) a joint venture that is itself a corporation or limited liability company or (ii) a similar limited liability entity organized under the laws of a jurisdiction other than the United States or a state thereof) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person by contract or operation of law. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a) of this definition, Other Taxes.
“Indemnitees” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07.
“Intercreditor Agreement” means, with respect to any Permitted First Priority Refinancing Debt or Permitted Junior Priority Refinancing Debt, an intercreditor agreement between the Administrative Agent and the agent, trustee or other representative on behalf of the holders of such Indebtedness, in each case in form and substance satisfactory to the Administrative Agent.
“Interest Payment Date” means (a) as to any Eurocurrency Rate Loan or any SOFR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a Eurocurrency Rate Loan or a SOFR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made; and (c) as to
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any SONIA Loan, the last Business Day of each calendar month and the Revolving Loan Maturity Date.
“Interest Period” means, as to each Eurocurrency Rate Loan or SOFR Loan, the period commencing on the date such Eurocurrency Rate Loan or SOFR Loan, as applicable, is disbursed or converted to or continued as a Eurocurrency Rate Loan or a SOFR Loan, as applicable, and ending on the date one, two (other than in the case of (i) Eurocurrency Rate Loans that bear interest at the EURIBOR Rate and (ii) SOFR Loans), three or (other than in respect of the CDOR Screen Rate) six months thereafter (or a period of less than one month thereafter, if acceptable to the Applicable Administrative Agent in its sole discretion), as selected by the Company in its Loan Notice consistent with the requirements of Section 2.02(a) or otherwise acceptable to the Applicable Administrative Agent); provided that:
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the Screen Rate for the longest period (for which that Screen Rate is available in Dollars or, in respect of Revolving Loans or Letters of Credit denominated in an Alternative Currency, such Alternative Currency) that is shorter than the Impacted Interest Period and (b) the Screen Rate for the shortest period (for which that Screen Rate is available for Dollars or, in respect of Revolving Loans or Letters of Credit denominated in an Alternative Currency, such Alternative Currency) that exceeds the Impacted Interest Period, in each case, at such time, provided that if the Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Intralinks” means the “Acquired Business” as such term is defined in the Intralinks Incremental B-5 Amendment.
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“Intralinks Acquisition” means the acquisition by the Company of Intralinks pursuant to the Intralinks Acquisition Agreement.
“Intralinks Acquisition Agreement” means the “Acquisition Agreement” as such term is defined in the Intralinks Incremental B-5 Amendment.
“Intralinks Incremental B-5 Amendment” means that certain Commitment Increase Amendment, dated as of the Intralinks Incremental B-5 Effective Date, among, inter alios, the Company, the other Loan Parties party thereto, the Term B-5 Lender party thereto and the Administrative Agent.
“Intralinks Incremental B-5 Effective Date” has the meaning assigned to such term in the Intralinks Incremental B-5 Amendment.
“Intralinks Term B-5 Commitment” means, as to each Term B-5 Lender, its obligation to make Term B-5 Loans to the Company pursuant to the Intralinks Incremental B-5 Amendment in the principal amount stated therein pursuant to which such Term B-5 Lender becomes a party hereto, as such amount may be adjusted from time to time in accordance with this Agreement.
“Intralinks Transactions” means, collectively, (a) the consummation of the Intralinks Acquisition on the Intralinks Incremental B-5 Effective Date and the other transactions contemplated by the Intralinks Acquisition Agreement on or prior to the Intralinks Incremental B-5 Effective Date, (b) the effectiveness of the Term B-5 Loans under this Agreement pursuant to the Intralinks Incremental B-5 Amendment and (c) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less (except in the case of (x) Investments made using the Available Amount pursuant to Section 8.02(s) and (y) any amounts that increase the Available Amount pursuant to clause (e) of the definition thereof) any amount repaid, returned, distributed or otherwise received in respect of any Investment, in each case, in cash.
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Parent or any of its Restricted Subsidiaries.
“IP Rights” has the meaning specified in Section 6.17.
“Irish Security Documents” means (a) the Irish law governed share mortgage in relation to the shares in SS&C Technologies Ireland Limited, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), entered into or to be entered into between the Lux Intermediate Holdco, as chargor, and the Original
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Administrative Agent and (b) each other Irish law governed document or instrument which creates or evidences or which is expressed to create or evidence any Lien granted or required to be granted pursuant to Section 7.14.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means, with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Applicable L/C Issuer and the Company (or any Restricted Subsidiary) or in favor of the Applicable L/C Issuer and relating to such Letter of Credit.
“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit 7.12 executed and delivered by a Domestic Subsidiary in accordance with the provisions of Section 7.12.
“L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving Loans. All L/C Borrowings shall be denominated in Dollars.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means each of Credit Suisse AG, New York Branch, Morgan Stanley Bank, N.A. and Bank of America, N.A., in each case, including through any of their respective Affiliates or branches, in their capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Latest Maturity Date” means, at any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder at such time, including the latest maturity date of any Extended Revolving Commitments, Refinancing Revolving Commitments, Incremental Term Loan Commitments, Extended Term Loans, Incremental Term Loans,
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Refinancing Term Loans, Replacement Term Loans and Refinancing Term Commitments, in each case as extended in accordance with this Agreement from time to time.
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, authorizations and permits of, any Governmental Authority, in each case having the force of law.
“Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto and each other Person that becomes a “Lender” in accordance with this Agreement and their successors and permitted assigns.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Applicable Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate.
“Letter of Credit” means any standby letter of credit issued hereunder.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a letter of credit in the form from time to time in use by the Applicable L/C Issuer.
“Letter of Credit Expiration Date” means the day that is thirty days prior to the Revolving Loan Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning specified in Section 2.03(h).
“Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $75,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“LIBOR01 Screen Rate” has the meaning specified in the definition of “Eurocurrency Rate”.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition” means any Permitted Acquisition which the Company or any of its Restricted Subsidiaries is contractually committed to consummate, the
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consummation of which is not conditioned on the availability of, or on obtaining, third party financing.
“Liquidity” means, as of any date of determination, the sum of (a) Unrestricted Cash as of such date plus (b) the amount by which the aggregate unused Revolving Commitments exceed the Total Revolving Outstandings as of such date.
“Loan” means (i) each Revolving Loan, each 2017 Refinancing Term B-1 Loan, each Term B-3 Loan, each Term B-5 Loan, each Term B-6 Loan, each Incremental Term Loan, each Extended Term Loan, each Extended Revolving Loan, each Refinancing Term Loan, each Refinancing Revolving Loan and each Replacement Term Loan representing an extension of credit to the Company and (ii) each 2017 Refinancing Term B-2 Loan, each Term B-4 Loan, each Term B-7 Loan, each Extended Term Loan and each Refinancing Term Loan representing an extension of credit to a Designated Borrower.
“Loan Documents” means this Agreement, each Note, each Issuer Document, each Joinder Agreement, each Collateral Document, each Incremental Term Loan Agreement, each Extension Amendment, each Refinancing Amendment, the Re-Allocation Agreement, the Security Trust Deed and any Intercreditor Agreement.
“Loan Notice” means a notice of (a) a Borrowing of Revolving Loans or Term Loans under a given Facility, (b) a conversion of Loans under a given Facility from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans or SOFR Loans under a given Facility, in each case pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit 2.02.
“Loan Parties” means, collectively, the Domestic Loan Parties and the Foreign Loan Parties.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“Lux Advent Software Luxembourg CPECs Pledge Agreement” means the Luxembourg law governed CPECs pledge agreement, dated March 4, 2016 (as amended, restated, supplemented or otherwise modified from time to time and as amended and restated pursuant to the Second Amendment), between Hub Data Incorporated, as pledgor, and the Original Administrative Agent, in the presence of Advent Software Luxembourg as company.
“Lux Advent Software Luxembourg Share Pledge Agreement” means the Luxembourg law governed share pledge agreement, dated March 4, 2016 (as amended, restated, supplemented or otherwise modified from time to time and as amended and restated pursuant to the Second Amendment), between Hub Data Incorporated, as pledgor, and the Original Administrative Agent, in the presence of Advent Software Luxembourg as company.
“Lux Intermediate Holdco” means SS&C European Holdings, a société à responsabilité limitée organized under the laws of Luxembourg having its registered office at 2, rue Jean Monnet, L-2180 Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B173925.
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“Lux Security Confirmation Agreement” means the Luxembourg law governed confirmation agreement to be made on or about the Revolving Amendment Effective Date between (a) the Advent Software Luxembourg, the Lux Intermediate Holdco and Hub Data Incorporated as pledgors, (b) the Administrative Agent and (c) Advent Software Luxembourg, the Lux Intermediate Holdco and the Designated Borrower 2 as companies, in relation to the Lux Security Documents.
“Lux Security Documents” means each of (a) the Lux SS&C Technologies Holdings Europe Share Pledge Agreement, (b) the Lux SS&C European Holdings Share Pledge Agreement, (c) the Lux Advent Software Share Pledge Agreement, (d) the Lux SS&C Technologies Holdings Europe CPECs Pledge Agreement, (e) the Lux SS&C European Holdings CEPCs Pledge Agreement, (f) the Lux Advent Software CPECs Pledge Agreement and (g) each other Luxembourg law governed document or instrument which creates or evidences or which is expressed to create or evidence any Lien granted or required to be granted pursuant to Section 7.14.
“Lux SS&C European Holdings CPECs Pledge Agreement” means the Luxembourg law governed CPECs pledge agreement, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), between Advent Software Luxembourg, as pledgor, and the Original Administrative Agent, in the presence of Lux Intermediate Holdco as company.
“Lux SS&C European Holdings Share Pledge Agreement” means the Luxembourg law governed share pledge agreement, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), between Advent Software Luxembourg, as pledgor, and the Original Administrative Agent, in the presence of Lux Intermediate Holdco as company.
“Lux SS&C Technologies Holdings Europe CPECs Pledge Agreement” means the Luxembourg law governed CPECs pledge agreement dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), between Lux Intermediate Holdco, as pledgor, and the Original Administrative Agent, in the presence of the Designated Borrower 2 as company, securing the Foreign Obligations.
“Lux SS&C Technologies Holdings Europe Share Pledge Agreement” means the Luxembourg law governed share pledge agreement, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), between Lux Intermediate Holdco, as pledgor, and the Original Administrative Agent, in the presence of the Designated Borrower 2 as company, securing the Foreign Obligations.
“Luxembourg” means the Grand Duchy of Luxembourg.
“Luxembourg Company Law” means the Luxembourg law dated August 10, 1915 on commercial companies, as amended.
“Luxembourg Guarantor” means any Guarantor incorporated under the laws of the Grand Duchy of Luxembourg.
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“March 2019 Note Purchase Agreement” means the Purchase Agreement, dated March 14, 2019, between the Company, the initial purchasers named therein and the guarantors named therein.
“March 2019 Senior Notes” means the 5.500% unsecured senior notes issued by the Company pursuant to the March 2019 Note Purchase Agreement.
“March 2019 Senior Notes Maturity Date” means September 30, 2027.
“Margin Stock” has the meaning specified in Section 6.14(b).
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities (actual or contingent), or financial condition of the Parent and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of any of the Administrative Agents or any Lender under the Loan Documents or of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
“Maturity Date” means (a) as to the Revolving Loans and Letters of Credit (and the related L/C Obligations), the earlier of (i) December 28, 2027 and (ii) the Springing Maturity Date, if any (the “Revolving Loan Maturity Date”), (b) as to the 2017 Refinancing Term B-1 Loans, the seventh anniversary of the Original Closing Date, (c) as to the 2017 Refinancing Term B-2 Loans, the seventh anniversary of the Original Closing Date, (d) as to the Term B-3 Loans, the seventh anniversary of the Restatement Effective Date, (e) as to the Term B-4 Loans, the seventh anniversary of the Restatement Effective Date, (f) as to the Term B-5 Loans, the seventh anniversary of the Restatement Effective Date, (g) as to the Term B-6 Loans, the seventh anniversary of the Incremental B-6/B-7 Effective Date, (h) as to the Term B-7 Loans, the seventh anniversary of the Incremental B-6/B-7 Effective Date, (i) as to an Incremental Term Loan, the final maturity date for such Incremental Term Loan as set forth in the applicable Incremental Term Loan Agreement, (j) as to any Extended Term Loans or Extended Revolving Loans, the final maturity date therefor as set forth in the applicable Extension Amendment and (k) as to any Refinancing Term Loans or Refinancing Revolving Loans, the final maturity date therefor as set forth in the applicable Refinancing Amendment; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Merger” means the merger of MergerCo with and into Target (with Target to be the surviving corporation of such merger) in accordance with the Merger Agreement.
“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of January 11, 2018, among the Target, the Parent and MergerCo (including all exhibits and disclosure schedules thereto).
“Merger Agreement Representations” means the representations made by (or relating to) the Target and/or any of its Subsidiaries in the Merger Agreement as are material to the
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interests of the Lenders, but only to the extent that the Company has the right (or the Company’s applicable affiliate has the right) to terminate the Company’s (or the Company’s affiliate’s) obligations (or to refuse to consummate the Target Acquisition) under the Merger Agreement as a result of a breach of such representations.
“MergerCo” means Diamond Merger Sub, Inc., a Delaware corporation and a Wholly Owned Subsidiary of the Company.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“MSSF” means Morgan Stanley Senior Funding, Inc.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including any Loan Party or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net Cash Proceeds” means:
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“Net Working Capital” means, with respect to any Person and its Restricted Subsidiaries on a consolidated basis, Consolidated Current Assets minus Consolidated Current Liabilities.
“Non-Consenting Lender” has the meaning specified in Section 11.13.
“Non-Loan Party” means any Subsidiary of the Parent that is not a Loan Party.
“Not Otherwise Applied” means, with reference to the Available Amount or pursuant to Sections 8.02(s), 8.06(h) or 8.12(b)(iv), as applicable, that such amount was not previously applied pursuant to Sections 8.02(s), 8.06(h) and 8.12(b)(iv).
“Note” means a Term B-1 Note, a Term B-2 Note, a Term B-3 Note, a Term B-4 Note, a Term B-5 Note, a Term B-6 Note, a Term B-7 Note or a Revolving Note, as the context may require.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit (including the Direct U.S. Loan Party Obligations and the Foreign Obligations), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing shall also include (a) all obligations under any Secured Swap Contract between
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any Loan Party and any Lender or Affiliate of a Lender (excluding any Excluded Swap Obligations) and (b) all obligations under any Secured Treasury Management Agreement between any Loan Party and any Lender or Affiliate of a Lender.
“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.
“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Original Administrative Agent” means Deutsche Bank AG New York Branch.
“Original Closing Date” means July 8, 2015.
“Other Applicable Indebtedness” has the meaning set forth in Section 2.05(b)(iv).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, excluding any such Tax imposed on an assignment (other than an assignment pursuant to a request by the Company under Section 11.13) of any interest in any Loan or Commitment hereunder (an “Assignment Tax”), but only to the extent such Assignment Tax is imposed as a result of a present or former connection between the assignor and/or assignee and the taxing jurisdiction (other than any connection arising solely from such assignor and/or assignee having executed, delivered, become a party to, performed its obligations under, received payments, received a perfected security interest under, engaged in any other transaction pursuant to, and/or enforced any Loan Documents).
“Outstanding Amount” means (a) with respect to any Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent of the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Applicable Administrative Agent, the Applicable L/C Issuer, as the case may be, in accordance
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with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of CS or MSSF, as applicable, in the applicable offshore interbank market for such currency to major banks in such interbank market.
“Parent Equity Offering” means all public offerings of common equity of the Parent consummated prior to the Restatement Effective Date.
“Participant” has the meaning specified in Section 11.06(d).
“Participant Register” has the meaning specified in Section 11.06(d).
“Participating Member State” means each state so described in any EMU Legislation.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Internal Revenue Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in Section 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by any Loan Party and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal Revenue Code.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Acquisition” means (i) an Investment consisting of an Acquisition by the Parent or any of its Restricted Subsidiaries, provided that (a) the property acquired (or the property of the Person acquired) in such Acquisition complies with Section 8.07, (b) in the case of an Acquisition of the Equity Interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (c) the representations and warranties made by the Loan Parties in each Loan Document shall be true and correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto) except to the extent such representations and warranties expressly relate to an earlier date, (d) no Default exists or would result therefrom, (e) if the Person acquired is or becomes a Domestic Subsidiary of the Company, it shall (to the extent required by Section 7.12) guarantee all of the Obligations and otherwise satisfy the requirements of Section 7.12 and Section 7.14 within the timeframes provided therein, and (f) if the Person acquired is or becomes a Restricted Subsidiary of Lux Intermediate Holdco, it shall (to the extent required by Section 7.12) guarantee the Foreign Obligations and otherwise satisfy the requirements of Section 7.12 and Section 7.14 within the timeframes provided therein; provided that the
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requirements of clauses (c) and (d) above shall be subject to Sections 1.12 and 2.01(i) in the case of a Limited Condition Acquisition, and (ii) the Target Acquisition.
“Permitted First Priority Refinancing Debt” means any secured Indebtedness incurred by the Company in the form of one or more series of senior secured notes ranking pari passu with the liens securing the Facilities (other than the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans or any Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by any Designated Borrower with respect thereto); provided that (i) such Indebtedness will be subject to the terms of an Intercreditor Agreement and (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness. Permitted First Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Holders” means (i) William C. Stone and his spouse and the members of his immediate family and (ii) any estate, trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons holding a Controlling interest of which consist solely of one or more Persons referred to in the immediately preceding clause (i).
“Permitted Intercompany Investments” means (a) any Investment by any Loan Party in any other Loan Party; provided that the aggregate outstanding principal amount of all Investments made by Domestic Loan Parties in Foreign Loan Parties under this clause (a) (exclusive of Investments made in any Designated Borrower at any time in order to repay outstanding Foreign Obligations of any Designated Borrower (provided that the proceeds of any such Investment are actually utilized to repay Foreign Obligations within 90 days from the date of such Investment), in each case, in an amount not exceeding the funding requirement therefor), together with, without duplication, the aggregate outstanding principal amount of all Indebtedness of Foreign Loan Parties guaranteed by Domestic Loan Parties pursuant to (and in reliance on) Section 8.03 (other than the Loans), shall not exceed $800,000,000 at any time; (b) any Investment by any Domestic Non-Loan Party in any Domestic Loan Party; (c) any Investment by any Domestic Non-Loan Party in any other Domestic Non-Loan Party; (d) any Investment by any Foreign Loan Party (including the Designated Borrowers) in any other Foreign Loan Party; (e) any Investment by any Foreign Non-Loan Party in any Foreign Loan Party; (f) any Investment by any Foreign Non-Loan Party in any other Foreign Non-Loan Party; and (g) any Investment (i) by any Foreign Loan Party in any Non-Loan Party and (ii) by any Domestic Loan Party in any Non-Loan Party; provided that the aggregate outstanding principal amount of all Investments under this clause (g) (exclusive of Investments made by any Foreign Loan Party with the proceeds of an Investment made by a Domestic Loan Party, directly or indirectly, in such Foreign Loan Party, to the extent made in compliance with clause (a) above), together with, without duplication, the aggregate outstanding principal amount of all Indebtedness of Non-Loan Parties guaranteed by Loan Parties pursuant to (and in reliance on) Section 8.03, shall not exceed $400,000,000 at any time; provided further, that any Indebtedness owing (i) by any Domestic Loan Party to any Domestic Non-Loan Party pursuant to clause (a) or (b), as applicable, shall be subordinated in right of payment to the prior payment in full of the Obligations of such Domestic Loan Party, as applicable, on terms reasonably satisfactory to the Administrative Agents and (ii) by any Foreign Loan Party to any Foreign Non-Loan Party pursuant to clause (d) or (e), as applicable, shall be subordinated in right of payment to the prior payment in full of the Obligations of such Foreign Loan Party, as applicable, on terms reasonably satisfactory to the Administrative Agents.
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“Permitted Intercompany Transfers” means any Disposition by the Parent or any Restricted Subsidiary to the Parent or any Restricted Subsidiary; provided that (i) any such Disposition made for consideration of less than the fair market value of the assets Disposed of (as reasonably determined by the Company) shall constitute an Investment by the maker of such Disposition in the recipient of such Disposition in an amount equal to the difference (as reasonably determined by the Company) between the fair market value of the assets so Disposed of and the consideration received and such Investment shall be required to be permitted under Section 8.02 (provided that, solely for this purpose, Section 8.02(i) shall not apply) and (ii) for the avoidance of doubt, any non-cash consideration received in connection with any such Disposition in the form of an Investment shall be required to be permitted under Section 8.02 (provided that, solely for this purpose, Section 8.02(i) shall not apply).
“Permitted Junior Priority Refinancing Debt” means secured Indebtedness incurred by the Company in the form of one or more series of second lien (or other junior lien) secured notes or secured loans ranking junior to the liens securing the Facilities (other than the 2017 Refinancing Term B-2 Loans, the Term B-4 Loans or any Refinancing Term Loans, Extended Term Loans or Replacement Term Loans incurred by any Designated Borrower with respect thereto and the guarantees thereof by Foreign Loan Parties); provided that (i) such Indebtedness is secured by the Collateral (or the applicable portion thereof) on a second priority or other junior priority, as applicable, basis to the Liens securing the Direct U.S. Loan Party Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness, (iii) such Indebtedness meets the Permitted Other Debt Conditions and (iv) such Indebtedness will be subject to an Intercreditor Agreement. Permitted Junior Priority Refinancing Debt will include any junior secured Registered Equivalent Notes issued in exchange therefor.
“Permitted Liens” means, at any time, Liens in respect of property of the Parent or any of its Restricted Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.
“Permitted Other Debt Conditions” means, with respect to any Indebtedness, that such Indebtedness does not mature or have scheduled payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (except (x) customary asset sale, initial public offering or change of control or similar event provisions that provide for the prior repayment in full in cash of the Loans and all other Obligations, (y) maturity payments and customary mandatory prepayments for a customary bridge financing which, subject to customary conditions, provides for automatic conversion or exchange into Indebtedness that otherwise complies with the requirements of this definition or (z) “AHYDO” payments), in each case prior to the Latest Maturity Date at the time such Indebtedness is incurred.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, restructuring, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, restructured, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or paid
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related to such Indebtedness, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal, restructuring, replacement or extension plus an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, (c) no Event of Default shall have occurred and be continuing, (d) if such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations (or any portion thereof), such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations (or such portion thereof) on terms (i) at least as favorable (taken as a whole) to the Lenders as those contained in the documentation governing or evidencing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended (provided that a certificate of a Responsible Officer delivered to the Administrative Agents at least five Business Days prior to the incurrence of such Indebtedness stating that the Company has determined in good faith that such subordination terms satisfy the foregoing requirement shall be conclusive evidence that such subordination terms satisfy the requirement of this clause (i)) or (ii) as otherwise reasonably acceptable to the Administrative Agents, (e) to the extent such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is unsecured or secured by Liens that are subordinated to the Liens securing the Obligations (or any portion thereof), such modification, refinancing, replacement, refunding, renewal or extension is unsecured or (solely with respect to such Indebtedness that is secured by Liens that are subordinated to the Liens securing the Obligations (or any portion thereof)) secured by Liens that are subordinated to the Liens securing the Obligations (or such portion thereof) on terms (x) at least as favorable (taken as a whole) to the Lenders as those contained in the documentation (including any intercreditor or similar agreements) governing the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended (provided that a certificate of a Responsible Officer delivered to the Administrative Agents at least five Business Days prior to the incurrence of such Indebtedness stating that the Company has determined in good faith that such subordination terms satisfy the foregoing requirement shall be conclusive evidence that such subordination terms satisfy the requirement of this clause (x)) or (y) otherwise reasonably acceptable to the Administrative Agents and (f) such modification, refinancing, refunding, renewal, replacement or extension is directly incurred only by the direct borrower or issuer of the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended, and is guaranteed only by one or more Persons who are guarantors of the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended.
“Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of business; (b) Dispositions of machinery and equipment no longer used or useful in the conduct of business of the Parent and its Restricted Subsidiaries that are Disposed of in the ordinary course of business; (c) Permitted Intercompany Transfers; (d) Dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; (e) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Parent and its Restricted Subsidiaries; (f) the sale or disposition of Cash Equivalents for fair market value; (g) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned same (whether by deed in lieu of
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condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement; and (h) Dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property.
“Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by the Company in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and (ii) such Indebtedness meets the Permitted Other Debt Conditions. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, maintained for employees of any Loan Party or any of its Subsidiaries (other than a Multiemployer Plan established by any Loan Party or any of its Subsidiaries) or any such Plan to which any Loan Party or any of its Subsidiaries is required to contribute on behalf of any of its employees (other than a Multiemployer Plan).
“Platform” has the meaning specified in Section 7.02.
“Post-Closing Reorganization” means the internal reorganization of the Company and its Subsidiaries as described on Schedule 1.01 hereto.
“Primary Obligor” has the meaning specified in the definition of “Guarantee”.
“Pro Forma Basis” means, with respect to any transaction, that for purposes of calculating the financial covenant set forth in Section 8.11, the Consolidated Net Leverage Ratio Test, the Consolidated Net Leverage Ratio and/or the Consolidated Net Secured Leverage Ratio, such transaction shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period or, in the case of determinations described in Section 1.03(b)(ii), the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 7.01(a) or 7.01(b). In connection with the foregoing, (a) with respect to the incurrence of any Indebtedness, such Indebtedness shall be deemed to have been incurred as of the first day of the applicable period, (b) with respect to any Disposition or any designation of any Subsidiary as an Unrestricted Subsidiary, (i) income statement and cash flow statement items (whether positive or negative) attributable to the Person or property disposed of or designated as an Unrestricted Subsidiary (as applicable) shall be excluded to the extent relating to any period occurring prior to the date of such transaction or designation (as applicable) and (ii) Indebtedness which is retired in connection with any such Disposition or owed by the applicable Subsidiary at the time of its designation as an Unrestricted Subsidiary (as applicable) shall be excluded and deemed to have been retired as of the first day of the applicable period and (c) with respect to any Permitted Acquisition or designation of any Unrestricted Subsidiary as a Restricted Subsidiary, (i) income statement and cash flow statement items attributable to the Person or property acquired or designated as a Restricted Subsidiary (as applicable) shall be included to the extent relating to any period
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applicable in such calculations to the extent (A) such items are not otherwise included in such income statement and cash flow statement items for the Parent and its Restricted Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in this Section 1.01 and (B) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agents and (ii) any Indebtedness incurred or assumed by the Parent or any Restricted Subsidiary (including the Person or property acquired or designated as a Restricted Subsidiary (as applicable)) in connection with such transaction and any Indebtedness of the Person or property acquired or designated as a Restricted Subsidiary (as applicable) which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.
“Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the Company containing reasonably detailed calculations of (i) in the case of a Pro Forma Compliance Certificate delivered in connection with Section 2.01(f)(xi), Section 7.17(c), Section 8.03(f), Section 8.06(g), Section 8.06(h) or Section 8.12(b), the Consolidated Net Secured Leverage Ratio (as set forth in such applicable Section) and (ii) the financial covenant set forth in Section 8.11 (irrespective of whether such covenant is otherwise then applicable) as of the end of the period of four fiscal quarters most recently ended for which financial statements have been delivered pursuant to Section 7.01(a) or 7.01(b) after giving effect to the applicable transaction on a Pro Forma Basis.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 7.02.
“Qualified Capital Stock” means any Equity Interests that are not Disqualified Capital Stock.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an “ECP” under the Commodity Exchange Act or any regulations promulgated thereunder.
“RFR Business Day” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London; provided, that for purposes of notice requirements in Sections 2.02(a) such day is also a Business Day.
“Re-Allocation Agreement” means a Re-Allocation Agreement dated as of the Restatement Effective Date among the Lenders, substantially in the form of Exhibit 1.01(b), as amended, modified and supplemented from time to time.
“Re-Allocation Event” means (i) the occurrence of any Event of Default with respect to any Borrower pursuant to Sections 9.01(f) and (g), (ii) the declaration of the termination of any
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Commitment, or the acceleration of the maturity of any Loans, in each case pursuant to the provisions of Article IX hereof or (iii) the failure of any Borrower to pay any principal of, or interest on, any Loans of any Facility or any Unreimbursed Amounts on the applicable Maturity Date.
“Refinanced Debt” has the meaning set forth in the definition of “Credit Agreement Refinancing Indebtedness.”
“Refinanced Term Loans” has the meaning specified in Section 11.01.
“Refinancing” means the following refinancing transactions: (a) the 2017 Refinancing Term A-1 Loans and the 2017 Refinancing Term A-2 Loans shall have been repaid in full, together with all accrued but unpaid interest, fees and other amounts owing thereon, (b) all Indebtedness of the Target and its Subsidiaries under the Existing Target Credit Agreement shall have been repaid in full, together with all accrued but unpaid interest, fees and other amounts owing thereon, (c) the Existing Target Senior Notes shall have been repaid in full, together with all accrued but unpaid interest, fees and other amounts owing thereon, (d) all commitments, any security interests and any guaranties in connection with the Indebtedness to be refinanced pursuant to clauses (a), (b) and (c) above shall have been terminated and released, all to the reasonable satisfaction of the Administrative Agent and (e) the payment of all fees and expenses related to the foregoing transactions; provided that with respect to clause (c) above, (i) the repayment of the Existing Target Senior Notes on or prior to the Restatement Effective Date may be deferred until the end of the Existing Target Senior Notes Waiting Period so long as the Existing Target Senior Notes Condition shall have been satisfied and (ii) solely to the extent that the Target Tranche C Senior Notes have not been issued prior to the Restatement Effective Date, the commitments under the Existing 2017 Target Note Purchase Agreement to issue and purchase the Target Tranche C Senior Notes may remain outstanding until the end of the Target Tranche C Senior Notes Waiting Period.
“Refinancing Amendment” means an amendment to this Agreement executed by each of (a) the applicable Borrower, (b) the Applicable Administrative Agent and (c) each Lender (including any Additional Refinancing Lender) that agrees to provide any portion of Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Commitments or Refinancing Revolving Loans incurred pursuant thereto, in accordance with Section 2.17.
“Refinancing Revolving Commitments” means one or more Classes of revolving credit Commitments hereunder that result from a Refinancing Amendment.
“Refinancing Revolving Loans” means one or more Classes of revolving credit loans that are made pursuant to Refinancing Revolving Commitments.
“Refinancing Series” means all Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Loans or Refinancing Revolving Commitments that are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Loans, or Refinancing
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Revolving Commitments provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the same maturity, Effective Yield (other than, for this purpose, any original issue discount or upfront fees), if applicable, and amortization schedule.
“Refinancing Term Commitments” means one or more term loan Commitments hereunder providing for Refinancing Term Loans of the applicable Refinancing Series hereunder pursuant to a Refinancing Amendment.
“Refinancing Term Loans” means one or more Classes of term loans hereunder that are made pursuant to Refinancing Term Commitments.
“Register” has the meaning specified in Section 11.06(c).
“Registered Equivalent Notes” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar for dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Replacement Term Loans” has the meaning specified in Section 11.01.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
“Repricing Transaction” means (a) the incurrence by either Borrower or any Subsidiary thereof of any Indebtedness (including, without limitation, any new or additional term loans under this Agreement) (i) having an Effective Yield for the respective Type of such Indebtedness that is less than the Effective Yield for the 2017 Refinancing Term B-1 Loans, 2017 Refinancing Term B-2 Loans, Term B-3 Loans, Term B-4 Loans and/or Term B-5 Loans of the respective Type, and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of 2017 Refinancing Term B-1 Loans, 2017 Refinancing Term B-2 Loans, Term B-3 Loans, Term B-4 Loans and/or Term B-5 Loans or (b) any amendment, waiver or other modification to this Agreement which would have the effect of reducing the Effective Yield for the 2017 Refinancing Term B-1 Loans, 2017 Refinancing Term B-2 Loans, Term B-3 Loans, Term B-4 Loans and/or Term B-5 Loans (other than, in each case, any such transaction or amendment or modification in connection with a Change of Control or Transformational Event). Any such determination by the Administrative Agent and the Company as contemplated by preceding clauses (a) and (b) shall be conclusive and binding on all Lenders holding 2017 Refinancing
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Term B-1 Loans, 2017 Refinancing Term B-2 Loans, Term B-3 Loans, Term B-4 Loans and/or Term B-5 Loans.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.
“Required Lenders” means, as of the date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Revolving Commitments, Extended Revolving Commitments and Refinancing Revolving Commitments and (c) aggregate unused Term Commitments; provided, that the unused Revolving Commitment, Extended Revolving Commitment and Refinancing Revolving Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall in each case be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Lenders” means, as of any date of determination, Revolving Lenders holding more than 50% of the sum of the (a) Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Lender for purposes of this definition) and (b) aggregate unused Revolving Commitments on such date; provided that the unused Revolving Commitment of, and the portion of the Total Revolving Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
“Required Term Lenders” means, as of any date of determination, with respect to any Term Facility, Term Lenders under such Term Facility holding more than 50% of the sum of the (a) Term Loans outstanding under the applicable Term Facility and (b) aggregate unused Term Commitments in respect of the applicable Term Facility on such date.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, director, treasurer, assistant treasurer or controller of a Loan Party, solely for purposes of the delivery of incumbency certificates, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agents. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restatement Effective Date” shall mean the “Acquisition Closing Date” under and as defined in the Second Amendment.
“Restricted Obligations” has the meaning specified in Section 4.10.
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“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interests or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof). For purposes of clarification, any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of Indebtedness which by its terms is convertible into Equity Interests is not a “Restricted Payment”.
“Restricted Subsidiary” means any Subsidiary of the Parent other than an Unrestricted Subsidiary.
“Retained Excess Cash Flow Amount” means, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to the aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for all Excess Cash Flow Periods ending after the Restatement Effective Date and prior to such date; provided that, (i) to the extent that any or all of the Excess Cash Flow attributable to Restricted Subsidiaries that are Foreign Subsidiaries are prohibited or delayed by applicable local law or applicable organizational documents of such Foreign Subsidiary from being repatriated to a Borrower, the portion of such Excess Cash Flow so affected will not be included in the calculation of the Retained Excess Cash Flow Amount for so long, but only so long, as the applicable local law or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to either Borrower, and if within one year following the date on which such restriction first arose, such repatriation of any of such affected Excess Cash Flow is permitted under the applicable local law or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Excess Cash Flow will be included in the calculation of the Retained Excess Cash Flow Amount or (ii) to the extent that the Parent has determined in good faith, after consultation with the Administrative Agent, that repatriation to a Borrower of any of or all the Excess Cash Flow attributable to Restricted Subsidiaries that are Foreign Subsidiaries would have adverse tax consequences (including any reduction in tax attributes) (provided that, in any event, such Borrower shall use commercially reasonable efforts to eliminate such tax effect in their reasonable control in order to make such repatriation and repayment) with respect to such Excess Cash Flow, such Excess Cash Flow so affected will not be included in the calculation of the Retained Excess Cash Flow Amount for so long, but only so long, as the applicable adverse tax consequences with respect to such Excess Cash Flow remain, and if within one year following the date on which such adverse tax consequences first arose, such repatriation of any of such affected Excess Cash Flow would no longer have adverse tax consequences, such repatriation will be immediately effected and such repatriated Excess Cash Flow will be included in the calculation of the Retained Excess Cash Flow Amount.
“Retained Percentage” means, with respect to any Excess Cash Flow Period, (a) 100% minus (b) the Applicable ECF Percentage with respect to such Excess Cash Flow Period.
“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan or a SONIA Loan denominated in an
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Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the Applicable Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the Applicable L/C Issuer under any Letter of Credit denominated in an Alternative Currency and (iv) such additional dates as the Applicable Administrative Agent or the Applicable L/C Issuer shall determine or the Required Lenders shall require.
“Revolver Extension Request” has the meaning set forth in Section 2.18(b).
“Revolver Extension Series” has the meaning set forth in Section 2.18(b).
“Revolving Facility Administrative Agent Fee Letter” means that certain Revolving Facility Administrative Agent Fee Letter dated as of the Revolving Amendment Effective Date between the Revolving Facility Administrative Agent and the Company.
“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Company pursuant to Section 2.01(a) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.01(f), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.
“Revolving Facility Administrative Agent” means Morgan Stanley Senior Funding, Inc., in its capacity as administrative agent for the Revolving Lenders in respect of the Revolving Facility under any of the Loan Documents, or any successor Revolving Facility Administrative Agent.
“Revolving Facility Amendment” means that certain Revolving Facility Amendment to the credit agreement dated as of the Revolving Amendment Effective date among the Administrative Agent, the Revolving Facility Administrative Agent, the Parent, each Borrower, the Guarantors and the Revolving Lenders.
“Revolving Facility Amendment Effective Date” means December 28, 2022.
“Revolving Lender” means each Lender with a Revolving Commitment or holding Revolving Loans.
“Revolving Loan” has the meaning specified in Section 2.01(a).
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“Revolving Loan Maturity Date” has the meaning specified in clause (a) of the definition of “Maturity Date”.
“Revolving Note” means a promissory note made by the Company in favor of a Revolving Lender evidencing Revolving Loans made by such Revolving Lender, substantially in the form of Exhibit 1.01(e).
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw‑Hill Companies, Inc. and any successor thereto.
“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Applicable Administrative Agent or the Applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
“Sanctioned Country” means a country or territory which is itself the subject of comprehensive, territorial Sanctions (as of the Restatement Effective Date, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine).
“Sanctioned Person” means (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom, or any Person 50 percent or more owned by any such Person (b) any Person located, organized or resident in a Sanctioned Country.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union member state, or His Majesty’s Treasury of the United Kingdom.
“Screen Rate” means each of the LIBOR01 Screen Rate, the EURIBOR Screen Rate and the CDOR Screen Rate.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amendment” means that certain Second Amendment to Credit Agreement, dated as of the Second Amendment Effective Date, among, inter alios, the Parent, each Borrower, the Guarantors, the Original Administrative Agent, the Administrative Agent and the Required Lenders.
“Second Amendment Effective Date” has the meaning assigned to such term in the Second Amendment.
“Secured Swap Contract” means any Swap Contract between any Loan Party and a Lender or an Affiliate of a Lender that has been designated in writing by the applicable Lender
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(or Affiliate of a Lender) to the Administrative Agents and the Company as a “Secured Swap Contract”; provided that for the purposes of the Loan Documents in no circumstances shall any Excluded Swap Obligations constitute Obligations with respect to any Secured Swap Contract.
“Secured Treasury Management Agreement” means any Treasury Management Agreement between any Loan Party and any Lender or any Affiliate of a Lender that has been designated in writing by the applicable Lender (or Affiliate of a Lender) to the Administrative Agents and the Company as a “Secured Treasury Management Agreement”.
“Securities Act” means the Securities Act of 1933, as amended.
“Securitization Transaction” means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.
“Security Trust Deed” means the English law security trust deed, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), entered into by the Administrative Agent whereby, inter alia, the Administrative Agent declares that the rights, interests, benefits and other property comprised in the Liens which are the subject of the English Security Documents are held in trust for the Administrative Agent and the holders of the applicable Obligations.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.
“SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR.
“Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital, (d) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, and (e) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
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“SONIA” means a rate equal to the Sterling Overnight Index Average as administered by the SONIA Administrator.
“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SONIA Adjustment” means a percentage equal to 0.0326% per annum.
“SONIA Borrowing” means, as to any Borrowing, the Loans bearing interest at a rate based on Adjusted Daily Simple SONIA comprising such Borrowing.
“SONIA Loan” means a Loan denominated in Sterling that bears interest at a rate based on Adjusted Daily Simple SONIA.
“SONIA RFR Rate Day” has the meaning specified in the definition of “Adjusted Daily Simple SONIA”.
“Special Notice Currency” means, at any time, an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.
“Specified Representations” means those representations and warranties made by the Loan Parties in Sections 6.01(a)(i), 6.02(a) and (b), 6.03(a), 6.04, 6.14(b) and (c), 6.18(a), 6.19, 6.21(c) and 6.22(b).
“Spot Rate” for a currency means the rate determined by the Applicable Administrative Agent or the Applicable L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person 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 the Applicable Administrative Agent or the Applicable L/C Issuer may obtain such spot rate from another financial institution designated by the Applicable Administrative Agent or the Applicable L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further, that the Applicable L/C Issuer 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 an Alternative Currency.
“Springing Maturity Date” means the Business Day immediately prior to the date that is 90 days prior to (x) the earliest to occur of the Maturity Date of the Term B-3 Loans, the Term B-4 Loans or the Term B-5 Loans or (y) the March 2019 Senior Notes Maturity Date; provided, that no Springing Maturity Date shall occur with respect to clauses (x) or (y) if (a) the aggregate principal amount of the Term B-3 Loans, the Term B-4 Loans and the Term B-5 Loans or the March 2019 Senior Notes, as applicable, outstanding at such time is less than $475,000,000 and
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(b) Liquidity at such time is greater than or equal to the aggregate principal amount of the Term B-3 Loans, the Term B-4 Loans and the Term B-5 Loans or the March 2019 Senior Notes, as applicable, outstanding at such time.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) established by the Board of Governors of the Federal Reserve System of the United States (the “Board”) and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurocurrency Rate Loans shall be deemed to constitute Eurocurrency Liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Sterling” means the lawful currency of the United Kingdom.
“Sterling RFR Determination Day” has the meaning specified in the definition of “Adjusted Daily Simple SONIA”.
“Subordinated Debt” means any Indebtedness of the Parent or any Restricted Subsidiary described in the definition of “Consolidated Funded Indebtedness” that is subordinated in right of payment to the Obligations (or any portion thereof).
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.
“Substitute Affiliate Lender” has the meaning specified in Section 1.13(d).
“Substitute Facility Office” has the meaning specified in Section 1.13(d).
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the
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International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other similar master agreement used to document transactions of the type specified in clause (a) (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“Swiss Guarantor” has the meaning specified in Section 4.10.
“Swiss Security Documents” means (a) the Swiss law governed quota pledge agreement regarding the pledge of quotas in GlobeOp Financial Services (Switzerland) GmbH between SS&C European Holdings S.A.R.L. and the holders of Secured Obligations (as defined therein), represented by Deutsche Bank AG New York Branch as Original Administrative Agent, dated as of the Original Closing Date (as amended, restated, supplemented, confirmed or otherwise modified from time to time, including, without limitation, by (i) Swiss law governed security confirmation agreement between SS&C European Holdings S.A.R.L. and the holders of Secured Obligations (as defined therein), represented by Credit Suisse AG, Cayman Islands Branch as Security Agent dated as of April 16, 2018, and (ii) a Swiss law governed security confirmation agreement between SS&C European Holdings S.A.R.L. and the holders of Secured Obligations (as defined therein), represented by CS as Security Agent dated on or around the Revolving Facility Amendment Effective Date) and (b) each other Swiss law governed document or instrument which creates, evidences or confirms or which is expressed to create, evidence or confirm any Lien granted or required to be granted pursuant to Section 7.14.
“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on a balance sheet under GAAP.
“Target” means DST Systems, Inc., a Delaware corporation.
“Target Acquisition” means the acquisition by Parent of the Target pursuant to the Merger Agreement, to be effected by way of the Merger.
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“TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Applicable Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Target Foreign Subsidiary” means any Subsidiary of the Target organized outside the United States.
“Target Material Adverse Effect” means (with capitalized terms used in this definition and not otherwise defined in this Agreement having the meanings assigned thereto in the Merger Agreement) any circumstance, effect or change that, individually or in the aggregate, (i) materially adversely affects the business, financial condition or results of operations of the Target and its Subsidiaries, taken as a whole; provided, however, that any circumstance, effect or change arising from or related to the following shall not be taken into account in determining whether a Target Material Adverse Effect has occurred or would reasonably be expected to occur (except, in the case of clauses (a), (b), (c), (d), (e) or (f) below, to the extent disproportionately affecting the Target and its Subsidiaries relative to other companies in the industries in which the Target and its Subsidiaries operate, in which case only the incremental disproportionate effect shall be taken into account): (a) conditions affecting the United States economy, or any other national or regional economy or the global economy generally; (b) political conditions (or changes in such conditions) in the United States or any other country or region in the world, declared or undeclared acts of war, sabotage or terrorism, epidemics or pandemics (including any escalation or general worsening of any of the foregoing) or national or international emergency in the United States or any other country or region of the world occurring after the date of the Merger Agreement; (c) changes in the financial, credit, banking or securities markets in the United States or any other country or region in the world (including any disruption thereof and any decline in the price of any security or any market index) and including changes or developments in or relating to currency exchange or interest rates; (d) changes required by GAAP or other accounting standards (or interpretations thereof); (e) changes in any Laws or other binding directives issued by any Governmental Entity (or interpretations thereof), including, to the extent relevant to the business of the Target and its Subsidiaries, in any legal or regulatory requirement or condition or the regulatory enforcement environment and not specifically relating to the Target or its Subsidiaries; (f) changes that are generally applicable to the industries in which the Target and its Subsidiaries operate and not specifically relating to the Target or its Subsidiaries; (g) any failure by the Target to meet any internal or published projections, forecasts or revenue or earnings predictions for any period ending on or after the date of the Merger Agreement or any decline in the market price or trading volume of the common stock (provided that the underlying causes of any such failure or decline may be considered in determining whether a Target Material Adverse Effect has occurred to the extent not otherwise excluded by another exception herein); (h) the negotiation, execution or delivery of the Merger Agreement, the performance by any party hereto of its obligations under the Merger Agreement or the public announcement (including as to the identity of the parties hereto) of the Merger or any of the other transactions contemplated by the Merger Agreement including the impact thereof on relationships, contractual or otherwise (including the cessation of any such relationship) with customers, suppliers, landlords, tenants, lenders, investors, joint venture partners, partners or employees of the Target and its Subsidiaries (it being understood that this clause (h) shall not apply to any representation, warranty, covenant or agreement of the
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Target therein that is intended to address the consequences of the execution, delivery or performance of the Merger Agreement or the consummation of the transactions contemplated hereby); (i) changes in the Target’s credit rating (provided, however, that the underlying causes of such decline may be considered in determining whether a Target Material Adverse Effect has occurred to the extent not otherwise excluded by another exception herein); (j) the occurrence of natural disasters, force majeure events or weather conditions adverse to the business being carried on by the Target and its Subsidiaries; (k) stockholder litigation arising from or relating to the Merger Agreement or the Merger; (l) any action taken that is required by the terms of the Merger Agreement, or with the prior written consent or at the written direction of the Parent; (m) any damage or destruction of any owned real property that is substantially paid for by insurance; (n) any cyber-attacks, data breaches, ransomware attacks or similar events affecting the Target, excluding any such breaches, attacks or events to the extent attributable to the negligence of the Target or any of its Subsidiaries or the failure of the Target or any of its Subsidiaries to follow the best practices of the industries in which the Target and its Subsidiaries operate; or (o) the failure to obtain any approval contemplated by Section 6.13(a) of the Merger Agreement; or (ii) is or would be reasonably expected to prevent or materially impair, interfere with, hinder or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement by the Target.
“Target Tranche C Senior Notes” means the 4.02%, Series 2017A, Tranche C Senior Notes due August 6, 2025 to be issued pursuant to the Existing 2017 Target Note Purchase Agreement.
“Target Tranche C Senior Notes Condition” has the meaning set forth in Section 8.03(r).
“Target Tranche C Senior Notes Waiting Period” means, solely to the extent that the Target Tranche C Senior Notes have not been issued prior to the Restatement Effective Date, the period from the issuance of the Target Tranche C Senior Notes until the first Business Day on or immediately following the day that is 15 days after the issuance thereof.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term B Facilities” means, collectively, the Term B-1 Facility, the Term B- 2 Facility, the Term B-3 Facility, the Term B-4 Facility, the Term B-5 Facility, the Term B-6 Facility and the Term B-7 Facility.
“Term B-1 Facility” means the aggregate principal amount of the 2017 Refinancing Term B-1 Loans of all 2017 Refinancing Term B-1 Lenders outstanding.
“Term B-1 Lender” means each Lender holding a Term B-1 Loan.
“Term B-1 Loan” means an advance made by a Term B-1 Lender under the Term B-1 Facility.
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“Term B-1 Note” means a promissory note made by the Company in favor of a Term B-1 Lender evidencing Term B-1 Loans made by such Term B-1 Lender.
“Term B-2 Facility” means the aggregate principal amount of the 2017 Refinancing Term B-2 Loans of all 2017 Refinancing Term B-2 Lenders outstanding.
“Term B-2 Lender” means each Lender holding a Term B-2 Loan.
“Term B-2 Loan” means an advance made by a Term B-2 Lender under the Term B-2 Facility.
“Term B-2 Note” means a promissory note made by the Designated Borrower 2 in favor of a Term B-2 Lender evidencing Term B-2 Loans made by such Term B-2 Lender.
“Term B-3 Commitment” means, as to each Term B-3 Lender, its obligation to make Term B-3 Loans to the Company pursuant to the Incremental Joinder in the principal amount stated therein pursuant to which such Term B-3 Lender becomes a party hereto, as such amount may be adjusted from time to time in accordance with this Agreement.
“Term B-3 Facility” means the aggregate principal amount of the Term B-3 Loans of all Term B-3 Lenders outstanding at such time.
“Term B-3 Lender” means each Lender with a Term B-3 Commitment or holding a Term B-3 Loan.
“Term B-3 Loan” has the meaning set forth in Section 2.01(c).
“Term B-4 Commitment” means, as to each Term B-4 Lender, its obligation to make Term B-4 Loans to Designated Borrower 1 pursuant to the Incremental Joinder in the principal amount stated therein pursuant to which such Term B-4 Lender becomes a party hereto, as such amount may be adjusted from time to time in accordance with this Agreement.
“Term B-4 Facility” means the aggregate principal amount of the Term B-4 Loans of all Term B-4 Lenders outstanding at such time.
“Term B-4 Lender” means each Lender with a Term B-4 Commitment or holding a Term B-4 Loan.
“Term B-4 Loan” has the meaning set forth in Section 2.01(c).
“Term B-4 Note” means a promissory note made by the Company in favor of a Term B-4 Lender evidencing Term B-4 Loans made by such Term B-4 Lender, substantially in the form of Exhibit 1.01(d).
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“Term B-5 Commitment” means, as to each Term B-5 Lender, its obligation to make Term B-5 Loans to the Company pursuant to the Commitment Increase Amendment in the principal amount stated therein pursuant to which such Term B-5 Lender becomes a party hereto, as such amount may be adjusted from time to time in accordance with this Agreement.
“Term B-5 Facility” means the aggregate principal amount of the Term B-5 Loans of all Term B-5 Lenders outstanding at such time.
“Term B-5 Lender” means each Lender with a Term B-5 Commitment or holding a Term B-5 Loan.
“Term B-5 Loan” has the meaning set forth in Section 2.01(d).
“Term B-5 Note” means a promissory note made by the Company in favor of a Term B-5 Lender evidencing Term B-5 Loans made by such Term B-5 Lender, substantially in the form of Exhibit 1.01(d).
“Term B-6 and B-7 Repricing Transaction” means (a) the incurrence by any Borrower or any Subsidiary thereof of any Indebtedness in the form of term loans (including, without limitation, any new or additional term loans under this Agreement) (i) having an Effective Yield for the respective Type of such Indebtedness that is less than the Effective Yield for Term B-6 Loans and/or Term B-7 Loans of the respective Type, and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Term B-6 Loans and/or Term B-7 Loans or (b) any amendment, waiver or other modification to this Agreement which would have the effect of reducing the Effective Yield for the Term B-6 Loans and/or the Term B-7 Loans (other than, in each case, any such transaction or amendment or modification in connection with a Change of Control, a Transformational Event or a Term B-6 and B-7 Transformational Event), so long as, in each case of clauses (a) or (b), the primary purpose of such incurrence of Indebtedness or modification is to reduce the Effective Yield of the Term B-6 Loans and/or Term B-7 Loans. Any such determination by the Administrative Agent and the Company as contemplated by preceding clauses (a) and (b) shall be conclusive and binding on all Lenders holding Term B-6 Loans and/or Term B-7 Loans.
“Term B-6 and B-7 Transformational Event” means any dissolution, liquidation, consolidation or disposition by the Company or any Restricted Subsidiary (which involves aggregate consideration of at least 30% of Consolidated EBITDA as of the end of the most recently ended period of four fiscal quarters) that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or investment or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or investment, would not provide the Parent and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by the Company in good faith.
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“Term B-6 Commitment” means, as to each Term B-6 Lender, its obligation to make Term B-6 Loans to the Company pursuant to the Incremental B-6/B-7 Amendment in the principal amount stated therein pursuant to which such Term B-6 Lender becomes a party hereto, as such amount may be adjusted from time to time in accordance with this Agreement.
“Term B-6 Facility” means the aggregate principal amount of the Term B-6 Loans of all Term B-6 Lenders outstanding at such time.
“Term B-6 Lender” means each Lender with a Term B-6 Commitment or holding a Term B-6 Loan.
“Term B-6 Loan” has the meaning set forth in Section 2.01(j).
“Term B-6 Note” means a promissory note made by the Company in favor of a Term B-6 Lender evidencing Term B-6 Loans made by such Term B-6 Lender, substantially in the form of Exhibit 1.01(d).
“Term B-7 Commitment” means, as to each Term B-7 Lender, its obligation to make Term B-7 Loans to the Designated Borrowers pursuant to the Incremental B-6/B-7 Amendment in the principal amount stated therein pursuant to which such Term B-7 Lender becomes a party hereto, as such amount may be adjusted from time to time in accordance with this Agreement.
“Term B-7 Facility” means the aggregate principal amount of the Term B-7 Loans of all Term B-7 Lenders outstanding at such time.
“Term B-7 Lender” means each Lender with a Term B-7 Commitment or holding a Term B-7 Loan.
“Term B-7 Loan” has the meaning set forth in Section 2.01(k).
“Term B-7 Note” means a promissory note made by the Designated Borrowers in favor of a Term B-7 Lender evidencing Term B-7 Loans made by such Term B-7 Lender, substantially in the form of Exhibit 1.01(d).
“Term Commitment” means any of a Term B-3 Commitment, a Term B-4 Commitment, a Term B-5 Commitment, a Term B-6 Commitment, a Term B-7 Commitment, an Incremental Term Loan Commitment, a commitment with respect to Extended Term Loans, a commitment with respect to Replacement Term Loans and/or a Refinancing Term Commitment, as the context may require.
“Term Facilities” means the Term B Facility, any facility providing for Extended Term Loans, any facility providing for Refinancing Term Loans, any facility providing for Replacement Term Loans and/or any Incremental Term Loan Facility, as the context may require.
“Term Facilities Administrative Agent” means Credit Suisse AG, Cayman Islands Branch in its capacity as administrative agent for the Term Lenders in respect of the Term
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Facilities under any of the Loan Documents, or any successor Term Facilities Administrative Agent.
“Term Lender” means, at any time, a 2017 Refinancing Term B-1 Lender, a 2017 Refinancing Term B-2 Lender, a Term B-3 Lender, a Term B-4 Lender, a Term B-5 Lender, a Term B-6 Lender, a Term B-7 Lender, a Lender with respect to any Incremental Term Loans, a Lender with respect to any Extended Term Loans, a Lender with respect to any Replacement Term Loans or a Lender with respect to any Refinancing Term Loans.
“Term Loan Extension Request” has the meaning set forth in Section 2.18(a).
“Term Loan Extension Series” has the meaning set forth in Section 2.18(a).
“Term Loans” means the 2017 Refinancing Term B-1 Loans, 2017 Refinancing Term B-2 Loans, Term B-3 Loans, Term B-4 Loans, Term B-5 Loans, Term B-6 Loans, Term B-7 Loans, any Incremental Term Loans, any Extended Term Loans, any Refinancing Term Loans and any Replacement Term Loans.
“Term SOFR” means (a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and (b) for any calculation with respect to an Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day.
“Term SOFR Adjustment” means, with respect to the (a) Term B-3 Loans, Term B-4 Loans and Term B-5 Loans, 0.11448% (11.448 basis points) for an Interest Period of one-month's duration, 0.26161% (26.161 basis points) for an Interest Period of three-month's
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duration, and 0.42826% (42.826 basis points) for an Interest Period of six-months' duration and (b) Term B-6 Loans and Term B-7 Loans, 0.10% (10 basis points) for an Interest Period of one-month's duration, 0.15% (15 basis points) for an Interest Period of three-month's duration, and 0.25% (25 basis points) for an Interest Period of six-months' duration. There shall be no Term SOFR Adjustment in respect of the Revolving Facility.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Applicable Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Threshold Amount” means $150,000,000.
“Total Outstandings” means the Total Revolving Outstandings and the Outstanding Amount of all Term Loans.
“Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans and all L/C Obligations.
“Transaction” means, collectively, (a) the entering into by the Loan Parties and their applicable Subsidiaries of the Loan Documents to which they are or are intended to be a party, (b) the consummation of the Target Acquisition on the Restatement Effective Date and the other transactions contemplated by the Merger Agreement occurring on or prior to the Restatement Effective Date, (c) the Refinancing, (d) the effectiveness of the Term B-3 Loans and the Term B-4 Loans under this Agreement pursuant to the Incremental Joinder and the amendment and restatement of the Existing Company Credit Agreement in the form of this Agreement, (e) (i) the execution and delivery of the 2018 Senior Notes Documents and the placement and the issuance of the 2018 Senior Notes, if any, and/or (ii) to the extent that the aggregate principal amount of 2018 Senior Notes issued is less than $750,000,000, the borrowing of bridge loans, if any, by the Company under the Bridge Facility in an aggregate principal amount of 2018 Senior Notes issued and $750,000,000 and (f) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.
“Transformational Event” means any acquisition or investment by the Company or any Restricted Subsidiary that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or investment or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or investment, would not provide the Parent and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by the Company in good faith.
“Treasury Management Agreement” means any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit or debit cards, p-cards, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
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“Type” means, with respect to any Loan, its character as a Base Rate Loan, a Eurocurrency Rate Loan, a SONIA Loan or a SOFR Loan.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York.
“UK Financial Institution” means 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” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfunded Advances/Participations” means (a) with respect to the Applicable Administrative Agent, the aggregate amount, if any (i) made available to any Borrower on the assumption that each Lender has made available to the Applicable Administrative Agent such Lender’s share of the applicable Borrowing available to the Applicable Administrative Agent as contemplated by Section 2.12(b) and (ii) with respect to which a corresponding amount shall not in fact have been returned to the Applicable Administrative Agent by the Borrowers or made available to the Applicable Administrative Agent by any such Lender and (b) with respect to any L/C Issuer, the aggregate amount, if any, of amounts drawn under Letters of Credit in respect of which a Revolving Lender shall have failed to make Revolving Loans or L/C Advances to reimburse such L/C Issuer pursuant to Section 2.03(c).
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“Unrestricted Subsidiary” means (a) any Subsidiary of the Company designated by the Company as an Unrestricted Subsidiary pursuant to Section 7.17 subsequent to the Restatement Effective Date and (b) each Subsidiary formed or acquired by an existing Unrestricted Subsidiary previously designated by the Company as provided in preceding clause (a). Notwithstanding the foregoing, (i) in no circumstances shall any Borrower or Lux Intermediate Holdco be an Unrestricted Subsidiary and (ii) no Subsidiary that is a Restricted Subsidiary under the 2018 Senior Notes is permitted to be an Unrestricted Subsidiary hereunder.
“U.S. Collateral Document” means any Collateral Document other than the Foreign Collateral Documents (and including, for the avoidance of doubt, the U.S. Security Agreement
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and any Collateral Document providing for a pledge by a Domestic Loan Party of up to 65% of the voting Equity Interests and/or CPECs entitled to vote in (and 100% of the non-voting Equity Interests and non-voting CPECs) in (or promissory notes evidencing loans to) any First Tier Foreign Subsidiary or Foreign Holdco).
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Security Agreement” means the security and pledge agreement, dated as of the Original Closing Date (as amended, restated, supplemented or otherwise modified from time to time), executed in favor of the Administrative Agent and the other “Secured Parties” described therein by each of the Loan Parties party thereto.
“U.S. Subsidiary” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia.
“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency. For purposes of clarification, Indebtedness which by its terms is convertible into Equity Interests is not “Voting Stock”.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the time owned by the Parent directly or indirectly through other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly, by the Parent.
“Write-Down and Conversion Powers” means, (a) solely with respect to the Term Loans, 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 or (b) solely with respect to the Revolving Loans, 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 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
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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.
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THE COMMITMENTS AND CREDIT EXTENSIONS
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The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Company’s instructions or other irregularity, the Company will immediately notify the Applicable L/C Issuer. The Company shall be conclusively deemed to have waived any such claim against the Applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.
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A notice of the Applicable Administrative Agent to any Lender or the Company with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
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Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
Notwithstanding anything to the contrary contained in this Section 2.13 or elsewhere in this Agreement, the applicable Borrowers may extend the final maturity of Loans and/or
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Commitments in connection with an Extension that is permitted under Section 2.18 without being obligated to effect such extensions on a pro rata basis among the Lenders (it being understood that no such extension (i) shall constitute a payment or prepayment of any Loans, for purposes of this Section 2.13 or (ii) shall reduce the amount of any scheduled amortization payment due under Section 2.07, except that the amount of any scheduled amortization payment due to a Lender of Extended Term Loans may be reduced to the extent provided pursuant to the express terms of the respective Extension Amendment) without giving rise to any violation of this Section 2.13 or any other provision of this Agreement. Furthermore, the applicable Borrower may take all actions contemplated by Section 2.18 in connection with any Extension (including modifying pricing, amortization and repayments or prepayments), and in each case such actions shall be permitted, and the differing payments contemplated therein shall be permitted without giving rise to any violation of this Section 2.13 or any other provision of this Agreement.
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TAXES, YIELD PROTECTION AND ILLEGALITY
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Without limiting the generality of the foregoing, if a Borrower is resident for tax purposes in the United States, (A) any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code and that makes a Credit Extension to such Borrower shall deliver to the Company or the Applicable Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Applicable Administrative Agent) executed copies of IRS Form W-9 or such other documentation or information prescribed by applicable laws or reasonably requested by the Company or the Applicable Administrative Agent as will enable the Company or the Applicable Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and (B) any Foreign Lender shall deliver to the Company and the Applicable Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Applicable Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
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In addition to the foregoing, if a payment made to a Lender under any Loan Document would be subject to 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 Internal Revenue Code, as applicable), such Lender shall deliver to the Company and the Applicable Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Applicable Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Company or the Applicable Administrative Agent as may be necessary for the requesting party to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph, “FATCA” shall include any amendments made to FATCA after the Restatement Effective Date.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Applicable Administrative Agent in writing of its legal inability to do so.
Upon becoming Party to this Agreement as the Administrative Agent hereunder, Credit Suisse AG, Cayman Islands Branch shall deliver to the Company, on or prior to Restatement Effective Date, (i) two duly completed executed copies of IRS Form W-8ECI to establish that Credit Suisse AG, Cayman Islands Branch is not subject to withholding Taxes under the Code with respect to any amounts payable for the account of Credit Suisse AG under any of the Loan Documents and (ii) two duly completed executed copies of IRS Form W-8IMY certifying that it is a “U.S. branch” and that the payments it receives for the account of others under the Loan Documents are not effectively connected with the conduct of its trade or business in the United States and that such IRS Form W-8IMY evidences its agreement with the Domestic Borrowers to be treated as a “United States person” with respect to such payments such that the Domestic
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Borrowers can make payments to such Administrative Agent under the Loan Documents without deduction or withholding of any United States federal income tax under Section 1441 of the Code.
Upon becoming Party to this Agreement as the Revolving Facility Administrative Agent hereunder, MSSF shall, if requested by the Company, deliver to the Company, on or prior to Revolving Facility Amendment Date, duly completed executed copies of IRS Form W-9 to establish that MSSF is a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code.
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Upon notice thereof by any of the Administrative Agents to the Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until such Applicable Administrative Agent (with respect to clause (ii), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (A) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and (B) any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 3.05. Subject to Section 3.03(c), if any of the Administrative Agents determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by such Applicable Administrative Agent without reference to clause (c) of the definition of “Base Rate” until such Applicable Administrative Agent revokes such determination.
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and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate, Adjusted Daily Simple SONIA or Term SOFR, as applicable (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
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including foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract (but excluding anticipated profits). The Company shall also pay (or cause the applicable Designated Borrower to pay) any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower) to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan or SOFR Loan made by it at the Eurocurrency Rate or Term SOFR, as applicable, for such Loan by a matching deposit or other borrowing in the
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applicable market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan or SOFR Loan was in fact so funded.
GUARANTY
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Each Swiss Guarantor and any parent company of a Swiss Guarantor that is a party to this Agreement shall, as soon as possible after the deduction of the Swiss withholding tax as contemplated in this clause (b), (x) ensure that any person which is, as a result of a payment under this Agreement, entitled to a full or partial refund of such Swiss withholding tax, is in a position to apply for such refund under any applicable law (including any applicable double tax treaty) and (y) in case it has received any refund of such Swiss withholding tax, pay such refund to the Administrative Agent promptly upon receipt thereof.
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CONDITIONS PRECEDENT
Each Request for Credit Extension (other than a Credit Extension to be made on the Restatement Effective Date) submitted by the Company shall be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a) and 5.02(b) have been satisfied on and as of the date of the applicable Credit Extension.
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agents, the L/C Issuers and the Lenders on the date of each Credit Extension made after the Restatement Effective Date and, with respect to Sections 6.01(a)(i), 6.02(a) and (b), 6.03(a), 6.04, 6.14(b) and (c), 6.18(a), 6.19, 6.21(c) and 6.22(b), on the Restatement Effective Date, that:
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Solely with respect to the Revolving Facility, the representations and warranties given in this Clause shall only be made by and apply to any Luxembourg Loan Party to the extent that giving of and complying with such representations and warranties does not result in a violation of or conflict with or does not expose any Luxembourg Loan Party to any liability under the Council Regulation (EC) 2271/96 or any similar anti-boycott laws or regulations.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than Obligations for indemnification, expense reimbursement, tax gross-up or yield protection for which no claim has been made) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Loan Parties shall and shall cause each Restricted Subsidiary to (except that the obligations under Sections 7.01, 7.02 and 7.03 shall be obligations of the Parent only):
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As to any information contained in materials furnished pursuant to Section 7.02(d), the Company shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Parent to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
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Documents required to be delivered pursuant to Section 7.01(a) or 7.01(b) or Section 7.02(d) or Section 7.02(f) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto, on the Company’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agents have access (whether a commercial, third‑party website or whether sponsored by any of the Administrative Agents); provided that: (i) the Company shall deliver paper copies of such documents to the Applicable Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Applicable Administrative Agent or such Lender and (ii) the Company shall notify the Administrative Agents and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agents by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agents shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Company hereby acknowledges that (a) the Administrative Agents, the Arrangers and/or the Co-Managers will make available to the Lenders and the L/C Issuers materials and/or
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information provided by or on behalf of the Company hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Company or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Company hereby agrees that so long as the Parent is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Company Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC”, the Company shall be deemed to have authorized the Administrative Agents, the Arrangers, the Co-Managers, the L/C Issuers and the Lenders to treat such Company Materials as not containing any material non-public information with respect to the Company or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Company Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Side Information”; and (z) the Administrative Agents, the Arrangers and the Co-Managers shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform that is not marked as “Public Side Information”. Notwithstanding the foregoing, the Company shall be under no obligation to mark any Company Materials “PUBLIC”.
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Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
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NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than Obligations for indemnification, expense reimbursement, tax gross-up or yield protection for which no claim has been made) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no Loan Party shall, nor shall it permit any Restricted Subsidiary to, directly or indirectly:
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The Administrative Agent is hereby instructed by the Lenders and hereby agrees with the Loan Parties that the Administrative Agent shall release its Liens on any property Disposed of in accordance with the terms of this Section 8.05 (and subject to the requirements of Section 11.20).
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(i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement.
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Consolidated Net Secured Leverage Ratio. With respect to the Revolving Facility only, permit the Consolidated Net Secured Leverage Ratio as of the end of any fiscal quarter of the Parent to be greater than the ratio specified below for the periods specified below:
Beginning with the first full fiscal quarter following the Restatement Effective Date, the following fiscal quarters | Consolidated Net |
The fiscal quarter ending September 30, 2018, through and including the fiscal quarter ending September 30, 2019 | 7.25 to 1.00 |
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The fiscal quarter ending December 31, 2019, through and including the fiscal quarter ending December 31, 2020 | 6.75 to 1.00 |
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The fiscal quarter ending March 31, 2021 and each fiscal quarter thereafter | 6.25 to 1.00 |
Notwithstanding the foregoing, this Section 8.11 shall be in effect only if, as of the last day of any fiscal quarter, the aggregate Outstanding Amount of all Revolving Loans and/or L/C Obligations (other than (i) Letters of Credit having an aggregate amount available to be drawn thereunder not to exceed $20,000,000 and (ii) Letters of Credit which have been Cash Collateralized in an amount equal to 105% of the amount available to be drawn under such Letters of Credit) at such time is equal to or greater than 30% of the Aggregate Revolving Commitments as of the end of the most recently ended period of four fiscal quarters.
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EVENTS OF DEFAULT AND REMEDIES
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provided, however, that (x) upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the Bankruptcy Code of the United States, the obligation of each Revolving Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the any of the Administrative Agents or any Lender and (y) during the continuance of any Event of Default arising under Section 9.01(b)(iii) on account of a violation of Section 8.11, upon the request of the Required Revolving Lenders (but not the Required Lenders or any other Lender or group of Lenders), the Revolving Facility Administrative Agent shall, by notice to the Company, (1) terminate the Revolving Commitments, and thereupon such Revolving Commitments shall terminate immediately, (2) declare the Revolving Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Company accrued hereunder, shall become due and payable
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immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company and (3) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof).
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agents in their capacity as such;
Second, to payment in full of Unfunded Advances/Participations (the amounts so applied to be distributed between or among, as applicable, the Revolving Facility Administrative Agent and the L/C Issuers pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution);
Third, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic payments, and any interest accrued thereon, due under any Secured Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender, ratably among the Lenders (and, in the case of such Secured Swap Contracts, Affiliates of Lenders) and the L/C Issuers in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to (a) payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other payments, and any interest accrued thereon, due under any Secured Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender, (c) payments of amounts due under any Secured Treasury Management Agreement between any Loan Party and any Lender, or any Affiliate of a Lender and (d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate
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undrawn amount of Letters of Credit, ratably among the Lenders (and, in the case of such Secured Swap Contracts and Secured Treasury Management Agreements, Affiliates of Lenders) and the L/C Issuers in proportion to the respective amounts described in this clause Fifth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth of clause (a) above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
Notwithstanding the foregoing, Obligations arising under Secured Treasury Management Agreements and Secured Swap Contracts shall be excluded from the application described above if the Administrative Agents have not received written notice thereof, together
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with such supporting documentation as the Administrative Agents may request, from the Lender or Affiliate of a Lender party to such Secured Treasury Management Agreement or such Secured Swap Contract, as the case may be. Each holder of any such Obligations arising under Secured Swap Contracts or Secured Treasury Management Agreements that is not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agents pursuant to the terms of Article X hereof for itself and its Affiliates as if it were a “Lender” party hereto.
Notwithstanding the foregoing or anything to the contrary in this Agreement or any other Loan Document, in no circumstances shall proceeds of any Collateral constituting an asset of a Loan Party which is not a Qualified ECP Guarantor be applied towards the payment of any Obligations under Secured Swap Contracts.
Notwithstanding any contrary provisions in any Loan Document, all references in the Loan Documents to payments, proceeds, liabilities, Obligations, Loans, fees, collections, Guarantees, Collateral, security interests, pledges, and any other arrangement affecting the payment obligations of the Borrowers and the other Loan Parties to the Administrative Agents, the Lenders and the other Secured Parties, shall, in the case of and as applied to any Foreign Loan Party, only relate to the Foreign Obligations, such that no payments received from, or collections on account of the property or assets of, a Foreign Loan Party (or rights to such receipt or such collection) shall be applied to any Direct U.S. Loan Party Obligations, it being the intention of the parties hereto to avoid adverse tax consequences for any Domestic Loan Party due to the application of Section 956 of the Internal Revenue Code. All provisions contained in any Loan Document shall be interpreted consistently with this Section 9.03 to the extent possible, and where such other provisions conflict with the provisions of this Section 9.03, the provisions of this Section 9.03 shall govern.
ADMINISTRATIVE AGENTS
The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender, potential Swap Contract providers and potential Treasury Management Agreement providers) and the L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender
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and such L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article X and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
The Administrative Agent shall also act as security trustee in relation to the security created or evidenced by the English Security Documents. Each Lender hereby authorizes the Administrative Agent to enter into the Security Trust Deed on its behalf. Each Person that becomes a Lender hereunder after the Restatement Effective Date hereby confirms that it shall be bound by the terms of the Security Trust Deed on and from the date on which it becomes a Lender as if it were an original Lender party thereto. In addition, each reference to the Administrative Agent in this Article X (including in connection with any indemnification or exculpation provided herein for the benefit of the Administrative Agent) shall be deemed to apply to the Administrative Agent acting in its capacity as security trustee under the Security Trust Deed.
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None of the Administrative Agents shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Applicable Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment). None of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice describing such Default is given to the Administrative Agents by the Company, a Lender or an L/C Issuer.
The Administrative Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agents.
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Any resignation by CS or MSSF as Administrative Agent or Revolving Facility Administrative Agent, respectively, pursuant to this Section shall also constitute its resignation as an L/C Issuer, so long as, effective upon such resignation, at least one L/C Issuer remains in such capacity and/or a successor L/C Issuer is appointed in accordance with the immediately following sentence and the aggregate Letter of Credit Sublimits of all remaining L/C Issuers is not less than the Letter of Credit Sublimit as in effect immediately prior to the effectiveness of such resignation. Upon the acceptance of a successor’s appointment as an Applicable Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, (ii) such retiring L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, issued by such retiring L/C Issuer and outstanding at the time of such succession or make other arrangements satisfactory to such retiring L/C Issuer to effectively assume the obligations of such retiring L/C Issuer with respect to such Letters of Credit.
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to any of the Administrative Agents and, if the Administrative Agents shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agents any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agents and their agents and counsel, and any other amounts due the Administrative Agents under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agents to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agents to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty, pursuant to this Section 10.10.
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(ii) Subject to Section 11.06 (but excluding, in all events, any assignment consent or approval requirements (other than the consent of the Borrower, to the extent required under Section 11.06)), the Revolving Facility Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the Revolving Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Revolving Facility Administrative Agent shall retain all other rights, remedies and claims against such Revolving Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the Revolving lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Revolving Facility Administrative Agent on or with respect to any such Loans acquired from such Revolving Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Revolving Facility Administrative Agent) and (y) may, in the sole discretion of the Revolving Facility Administrative Agent, be reduced by any amount specified by the Revolving Facility Administrative Agent in writing to the Revolving Lender from time to time.
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Each party’s obligations, agreements and waivers under this Section 10.13 shall survive the resignation or replacement of the Revolving Facility Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Revolving Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
MISCELLANEOUS
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provided, however, that notwithstanding anything to the contrary herein, (i) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (iii) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders, (iv) a Commitment Increase Amendment and/or the Incremental Joinder shall be effective if executed by the Loan Parties, each Lender providing an Incremental Term Loan Commitment or an increase in Revolving Commitments and the Applicable Administrative Agent, (v) no Lender consent is required to effect a Refinancing Amendment or Extension Amendment (except as expressly provided in Sections 2.17 or 2.18, as applicable), (vi) the Administrative Agents and the Borrower may amend other provisions of this Agreement or any other Loan Document to the extent explicitly permitted to do so by the terms of this Agreement or of any other Loan Document, (vii) only the written consent of the Borrowers, Required Revolving Lenders and the Revolving Facility Administrative Agent shall be required to amend, waive or otherwise modify any term or provision of Section 8.11 or Section 9.01(b) (solely as it relates to Section 8.11) and (viii) any amendment necessary to effect the provisions of the “Flex Rights” section of the Fee Letter (the “Flex Provisions”) shall only require the consent of the Administrative Agent and the Company; provided that, the Company hereby agrees and agrees to cause any other Loan Party to execute and deliver any amendment to this Agreement necessary to effect the Flex Provisions.
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Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
In addition, notwithstanding anything else to the contrary contained in this Section 11.01, (a) if the Administrative Agents and the Borrowers shall have jointly identified any error or omission of a technical nature in any provision of the Loan Documents, then the Administrative Agents and the Borrowers shall be permitted to amend such provision and (b) the Administrative Agent and the Borrowers shall be permitted to amend any provision of any Collateral Document to better implement the intentions of this Agreement and the other Loan Documents, and in each case, such amendments shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within ten (10) Business Days following receipt of notice thereof. The Lenders hereby expressly authorize the Administrative Agents to enter into any amendment to the Loan Documents contemplated by the preceding sentence.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company, the Designated Borrowers and the Lenders providing the relevant Replacement Term Loans to permit the refinancing of all outstanding Term Loans under a given Term Facility (the “Refinanced Term Loans”) with a replacement term loan tranche denominated in Dollars (the “Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall equal the aggregate principal amount of such Refinanced Term Loans, (b) the Effective Yield with respect to such Replacement Term Loans shall not be higher than the Effective Yield with respect to such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prior prepayments of the Refinanced Term Loans), (d) such Replacement Term Loans shall satisfy the requirements of Credit Agreement Refinancing Indebtedness, (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the Latest Maturity Date in effect immediately prior to such refinancing and (f) no Default shall have occurred and be continuing or would result from such Replacement Term Loans.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of each Revolving Lender, the Revolving Facility Administrative Agent and the Borrowers to the extent necessary to integrate any Alternative Currency (other than any
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Alternative Currency permitted as of the Restatement Effective Date) in accordance with Section 1.06.
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during the normal business hours of the recipient, shall be deemed to have been given at the opening of business on the next Business Day of the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
Unless the Applicable Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment), provided that if such notice or other communication is not sent during the normal business hours of the recipient,
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such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day of the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agents in accordance with Section 9.02 for the benefit of all the Lenders and the L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the Administrative Agents from exercising on their own behalf the rights and remedies that inure to their respective benefit (solely in their respective capacities as Administrative Agents) hereunder and under the other Loan Documents, (b) each L/C Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as an L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as an Applicable Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agents pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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Subject to acceptance and recording thereof by the Applicable Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and shall have acknowledged in writing that it is bound by the terms of the Re-Allocation Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement and the Re-Allocation Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement and the Re-Allocation Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto and to the Re-Allocation Agreement but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the applicable Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
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Upon its receipt of, and consent to, a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) above, if applicable, and the written consent of the Applicable Administrative Agent and, if required, the Borrower and the issuing bank to such assignment and any applicable tax forms, the Applicable Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) promptly record the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (c).
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For purposes of this Section, “Information” means all information received from a Loan Party or any Subsidiary relating to the Loan Parties or any Subsidiary or any of their respective businesses, other than any such information that is available to any of the Administrative Agents, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party or any Subsidiary (other than any such information received from a source that is known by the recipient to be in breach of confidentiality obligations with such Loan Party or any Subsidiary). Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agents, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
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provided that the failure by such Lender to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of such Lender and the mandatory assignment of such Lender’s Commitments and outstanding Loans and participations in L/C Obligations pursuant to this Section 11.13 shall nevertheless be effective without the execution by such Lender of an Assignment and Assumption.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
In case of replacement of any Lender by a new Lender of all or any part of its rights and obligations under any of the Loan Documents, it is agreed that, for the purposes of Article 1278 of the Luxembourg Civil Code (to the extent applicable), any security interests created under the Collateral Documents securing the rights assigned, transferred or novated hereby, will be preserved for the benefit of such new Lender.
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(c) Each of the Administrative Agents and each of the Arrangers hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions
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contemplated hereby, the Loan Documents or otherwise, including structuring fees, facility fees, arrangement fees, commitment fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported
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QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the Laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the Laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 11.25, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).”
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