UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
| (Exact Name of Registrant as Specified in its Charter) |
| (State or other jurisdiction of incorporation) | (Commission File Number) |
(I.R.S. Employer Identification No.) |
| (Exact Name of Registrant as Specified in its Charter) |
| (State or other jurisdiction of incorporation) | (Commission File Number) |
(I.R.S. Employer Identification No.) |
(Address of principal executive offices)
(Registrant’s telephone number, including area code)
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Exchange Act:
| Registrant | Title of Each Class | Trading Symbol | Name of Exchange on Which Registered | |||
| Spectrum Brands Holdings, Inc. |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§232.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
| Spectrum Brands Holdings, Inc. | ||
| SB/RH Holdings, LLC |
If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
| Spectrum Brands Holdings, Inc. | ☐ | |
| SB/RH Holdings, LLC | ☐ |
Item 1.01. Entry into a Material Definitive Agreement.
Spectrum Brands, Inc. (“Spectrum Brands” or the “Company”) is pleased to announce that, as part of a series of precautionary measures in response to the COVID-19 outbreak, it has further strengthened its liquidity position by amending (the “Amendment”) its revolving credit facility and adding another $90 million dollar denominated tranche to its existing $800 million multi-currency facility.
In addition to the Amendment, and as another precautionary measure, the Company recently drew the full amount available at the time under its then-existing US dollar and multi-currency facility. The full $90 million of the additional tranche remains available and undrawn as of the date hereof.
With the availability under this new tranche and the approximately $480 million of cash on hand, Spectrum Brands has approximately $570 million in current liquidity. The Company believes that its strong balance sheet and substantial liquidity position provide it with meaningful financial flexibility to navigate the current challenges resulting from the spread of COVID-19.
Summary of the Amendment and Credit Agreement Terms
On April 3, 2020, Spectrum Brands and SB/RH Holdings, LLC (“SB/RH Holdings”, which is the parent company of a Spectrum Brands and the wholly-owned subsidiary of Spectrum Brands Holdings, Inc.), entered into the Amendment to the Credit Agreement, dated as of June 23, 2015 (the “Credit Agreement”), by and among Spectrum Brands, SB/RH Holdings, Royal Bank of Canada (as successor to Deutsche Bank AG, New York Branch), as the administrative agent, and the lenders party thereto from time to time. The Amendment was the seventh amendment to the Credit Agreement.
The Amendment modified certain terms of the Credit Agreement, including adding an additional $90 million dollar tranche (the “2020 Dollar Revolving Tranche”) to Spectrum Brands’ Revolving Facility (as defined below), increasing the aggregate commitments under the Revolving Facility from $800 million to $890 million.
The material terms of the Credit Agreement, after giving effect to the Amendment, are described below.
Facility under the Credit Agreement
The facility (the “Revolving Facility”) under the Credit Agreement consists of a $890 million revolving credit facility (with two U.S. dollar tranches and a multicurrency tranche).
The aggregate commitment amount with respect to (a) the existing U.S. dollar tranche of the Revolving Facility is $600 million, (b) the multi-currency tranche of the Revolving Facility is $200 million and (c) the 2020 Dollar Revolving Tranche is $90 million. At April 3, 2020, after giving effect to the Amendment and the use of proceeds from borrowings incurred under the Credit Agreement as of such date, the existing U.S. dollar tranche of the Revolving Facility and the multi-currency tranche of the Revolving Facility were fully drawn and $90 million remains available under the 2020 Dollar Revolving Tranche. The commitment fee rate will be equal to 0.35% of the unused commitments for the existing U.S. dollar tranche and the multi-currency tranche of the of Revolving Facility, and 0.40% of the unused commitments for the 2020 Dollar Revolving Tranche, each of which may be reduced by 0.05% based on achieving a certain total net leverage ratio specified in the Credit Agreement.
Interest Rate
All outstanding amounts under the existing U.S. dollar tranche (if funded in U.S. dollars) will bear interest, at the option of Spectrum Brands, at a rate per annum equal to (x) the LIBO rate, adjusted for statutory reserves, plus a margin ranging between 1.75% to 2.25% or (y) the Alternate Base Rate (as defined in the Credit Agreement), plus a margin ranging between 0.75% to 1.25%.
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All outstanding amounts under the 2020 Dollar Revolving Tranche will bear interest, at Spectrum’s option, at a rate per annum equal to (x) the LIBO rate, adjusted for statutory reserves, plus a margin ranging between 2.00% to 2.50% or (y) the Alternate Base Rate (as defined in the Credit Agreement), plus a margin ranging between 1.00% to 1.50%.
The multi-currency tranche (if funded in Euros) will bear interest at a rate per annum equal to the EURIBOR Rate (as defined in the Credit Agreement), plus a margin ranging between 1.75% to 2.75% per annum. The multi-currency tranche (if funded in Canadian dollars) will bear interest, at Spectrum’s option, at a rate per annum equal to (x) the BA Rate (as defined in the Credit Agreement), plus a margin ranging between 1.75% to 2.25% or (y) the Canadian Base Rate (as defined in the Credit Agreement), plus a margin ranging between 0.75% to 1.25%.
The margin in each of the foregoing is determined based on certain total net leverage ratios specified in the Credit Agreement.
Prepayment Provisions
The Credit Agreement does not contain any mandatory prepayment provisions with respect to the Revolving Credit Facility, except in the event that the overall exposure exceeds the commitments under the Revolving Credit Facility.
Voluntary prepayments of borrowings under the Credit Agreement are permitted at any time, in agreed-upon minimum principal amounts. Prepayments are not subject to premium or penalty (except customary LIBOR breakage costs, if applicable).
Guarantees and Security
Obligations under the Credit Agreement and, at Spectrum Brands’ option, under certain interest rate protection or other hedging arrangements and certain cash management arrangements (collectively, the “Secured Obligations”) are guaranteed by SB/RH Holdings and the direct and indirect wholly-owned material domestic subsidiaries of SB/RH Holdings, other than Spectrum Brands (the “Subsidiary Guarantors”), subject to certain exceptions, pursuant to the Loan Guaranty, dated as of June 23, 2015, by and among SB/RH Holdings, the Subsidiary Guarantors party thereto from time to time and Royal Bank of Canada (as successor to Deutsche Bank AG New York Branch), as administrative agent and collateral agent (the “Loan Guaranty”).
The Secured Obligations are secured by first-priority liens on substantially all of the assets of Spectrum Brands and the Subsidiary Guarantors and on the equity interests of Spectrum Brands directly held by SB/RH Holdings pursuant to the Security Agreement, dated as of June 23, 2015, by and among Spectrum Brands, SB/RH Holdings, the Subsidiary Guarantors party thereto from time to time and Royal Bank of Canada (as successor to Deutsche Bank AG New York Branch), as collateral agent (the “Security Agreement”).
Maturity and Other
The Revolving Facility will mature on March 6, 2022.
The Credit Agreement contains customary affirmative and negative covenants, including, but not limited to, restrictions on Spectrum Brands’ and its restricted subsidiaries’ ability to incur indebtedness, create liens, make investments, pay dividends or make certain other distributions, and merge or consolidate or sell assets, in each case subject to certain exceptions set forth in the Credit Agreement.
The foregoing summary is not complete and is qualified entirely by reference to the full text of the applicable documents. The Credit Agreement, the Amendments, the Loan Guaranty and the Security Agreement are each incorporated by reference herein as exhibits to this report.
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Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 above is incorporated by reference into this Item 2.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are being filed with this Current Report on Form 8-K.
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Cautionary Note Regarding Forward-Looking Statements.
Certain matters discussed herein and other oral and written statements by representatives of Spectrum Brands and its affiliates are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements include statements regarding the agreements governing Spectrum Brands’ indebtedness, the amendment transaction disclosed in this report, the indebtedness incurred under the Credit Agreement, the statements on the impact of COVID-19, and statements identified by words such as “future,” “anticipate,” “intend,” “plan,” “estimate,” “believe,” “belief,” “expect,” “project,” “forecast,” “could,” “would,” “should,” “will,” “may,” and similar expressions of future intent or the negative of such terms. These statements are subject to a number of risks and uncertainties that could cause results to differ materially from those anticipated as of the date of this report.
Actual results may differ materially as a result of (1) the impact of the COVID-19 pandemic on our customers, employees and suppliers and our overall business and results of operations (2) the impact of our indebtedness on our business, financial condition and results of operations; (3) the impact of restrictions in our debt instruments on our ability to operate our business, finance our capital needs or pursue or expand business strategies; (4) any failure to comply with financial covenants and other provisions and restrictions of our debt instruments; (5) the effects of general economic conditions, including the impact of, and changes, to tariffs and trade policies, inflation, recession or fears of a recession, depression or fears of a depression, labor costs and stock market volatility or monetary or fiscal policies in the countries where we do business; (6) the impact of fluctuations in commodity prices, costs or availability of raw materials or terms and conditions available from suppliers, including suppliers’ willingness to advance credit; (7) interest rate and exchange rate fluctuations; (8) the loss of significant reduction in, or dependence upon, sales to any significant retail customer(s); (9) competitive promotional activity or spending by competitors, or price reductions by competitors; (10) the introduction of new product features or technological developments by competitors and/or the development of new competitors or competitive brands; (11) the impact of actions taken by significant stockholders; (12) changes in consumer spending preferences and demand for our products; (13) our ability to develop and successfully introduce new products, protect our intellectual property and avoid infringing the intellectual property of third parties; (14) our ability to successfully identify, implement, achieve and sustain productivity improvements (including our Global Productivity Improvement Plan), cost efficiencies (including at our manufacturing and distribution operations), and cost savings; (15) the seasonal nature of sales of certain of our products; (16) the
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effects of climate change and unusual weather activity; (17) the cost and effect of unanticipated legal, tax or regulatory proceedings or new laws or regulations (including environmental, public health and consumer protection regulations); (18) our discretion to conduct, suspend or discontinue our share repurchase program (including our discretion to conduct purchases, if any, in a variety of manners such as open-market purchases or privately negotiated transactions) (19) public perception regarding the safety of products that we manufacture and sell, including the potential for environmental liabilities, product liability claims, litigation and other claims related to products manufactured by us and third parties; (20) the impact of existing, pending or threatened litigation, government regulations or other requirements or operating standards applicable to our business; (21) the impact of cybersecurity breaches or our actual or perceived failure to protect company and personal data; (22) changes in accounting policies applicable to our business; (23) our ability to utilize net operating loss carry-forwards to offset tax liabilities from future taxable income; (24) the impact of expenses resulting from the implementation of new business strategies, divestitures or current and proposed restructuring activities; (25) our ability to successfully implement further acquisitions or dispositions and the impact of any such transactions on our financial performance; (26) the unanticipated loss of key members of senior management and the transition of new members of our management teams to their new roles; (27) the effects of political or economic conditions, terrorist attacks, acts of war, natural disasters, public health concerns or other unrest in international markets; and (28) the other risk factors set forth in the securities filings of Spectrum Brands Holdings, Inc. and SB/RH Holdings, LLC, including their most recently filed Annual Report on Form 10-K and subsequent Quarterly Report(s) on Form 10-Q.
We caution the reader that our estimates of trends, market share, retail consumption of our products and reasons for changes in such consumption are based solely on limited data available us and our management’s reasonable assumptions about market conditions, and consequently may be inaccurate or may not reflect significant segments of the retail market. We also caution the reader that undue reliance should not be placed on any forward-looking statements, which speak only as of the date of this report. We undertake no duty or responsibility to update any of these forward-looking statements to reflect events or circumstances after the date of this report or to reflect actual outcomes.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SPECTRUM BRANDS HOLDINGS, INC. | ||||
| SB/RH HOLDINGS, LLC | ||||
| Date: April 6, 2020 | By: | /s/ Ehsan Zargar | ||
| Name: | Ehsan Zargar | |||
| Title: | Executive Vice President, General Counsel, and Corporate Secretary | |||
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EXHIBIT 10.9
Execution Version
SIXTH AMENDMENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Sixth Amendment”) dated as of May 22, 2018, by and between
SPECTRUM BRANDS, INC., a Delaware corporation (the “Lead Borrower”) and ROYAL BANK OF CANADA (“Royal Bank”), as administrative agent (as successor to Deutsche Bank AG New York Branch) (in such capacity, the “Administrative Agent”)
under the Loan Documents. Unless otherwise indicated, all capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided to such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Lead Borrower, SB/RH HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the
Administrative Agent, each lender from time to time party thereto (the “Lenders”) and the other parties thereto have entered into the Credit Agreement, dated as of June 23, 2015 (as the same has been amended, restated, supplemented and/or
otherwise modified from time to time prior to the Sixth Amendment Effective Date referred to below, the “Credit Agreement”);
WHEREAS, pursuant to Section 9.02(d)(iii) of the Credit Agreement, the Lead Borrower and the
Administrative Agent have identified certain necessary or desirable technical changes to certain provisions of the Credit Agreement and wish to amend the Credit Agreement in accordance with the requirements set forth in Section 9.02(d)(iii)
of the Credit Agreement and otherwise on the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the premises and the agreements contained herein, the parties hereto agree as
follows:
SECTION 1. Amendments.
Subject to the terms and conditions set forth herein and the occurrence of the Sixth Amendment Effective Date, the Credit Agreement is hereby amended as follows:
(a) The definition of “Canadian Base Rate” in Section 1.01 of the Credit Agreement is hereby amended by amending and restating clause (x) thereof in its entirety as follows:
“(x) the rate of interest per annum established from time to time by the Administrative Agent
as the reference rate of interest for the determination of interest rates that the Administrative Agent will charge to customers in Canada for Canadian Dollar demand loans in Canada, and”
(b) The definition of “Exchange Rate” in Section 1.01 of the Credit Agreement is hereby amended by replacing the references to “approximately 11:00 a.m. (London time)” and “10:00 a.m. (New York City time) on such date” with
“the close of business on the Business Day that such conversion is to be made (or, if such conversion is to be made before close of business on such Business Day, then at approximately the close of business on the immediately preceding Business
Day)”.
(c) The definition of “Prime Rate” in Section 1.01 of the Credit Agreement is hereby amended by amending clause (a) thereof in its entirety as follows:
“(a) the rate of interest per annum determined by Royal Bank of Canada from time to time as
its prime commercial lending rate for United States Dollar loans in the United States for such day (such rate is not necessarily the lowest rate that Royal Bank of Canada is charging any corporate customer) or”.
(d) Section 5.01 of the Credit
Agreement is hereby amended by inserting a new paragraph at the end thereof to read as follows:
“The Lead Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers
will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Lead Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on Syndtrak 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 Lead Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’
securities. The Lead Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Lead Borrower shall be deemed to have authorized the
Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Lead Borrower or its
Affiliates or any of their respective securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower
Materials constitute Confidential Information, they shall be treated as set forth in Section 9.13); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side
Information”; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.”
(e) Section
2.11(a)(iii) of the Credit Agreement is hereby amended by inserting the text “shall be in the form of Exhibit H hereto and” immediately after the text “Each such notice” in the second sentence thereof.
(f) Section
2.11(b)(viii) of the Credit Agreement is hereby amended by inserting the text “in the form of Exhibit H hereto” immediately after the text “shall deliver to the Administrative Agent a certificate”.
(g) Exhibit H to
the Credit Agreement is hereby amended and restated in the form attached hereto as Exhibit H.
SECTION 2. Conditions
of Effectiveness of this Sixth Amendment.
This Sixth Amendment shall become effective on the date when each of the following conditions shall have been
satisfied (such date, the “Sixth Amendment Effective Date”):
(a) the Lead Borrower
and the Administrative Agent shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to Paul Hastings LLP;
(b) (i) on the Sixth
Amendment Effective Date both immediately prior to and after giving effect to this Sixth Amendment, no Default under Section 7.01(a), 7.01(f) or 7.01(g) or Event of
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Default shall exist and (ii) each of the representations and warranties set forth in the Credit Agreement and in the other Loan Documents (including the
representations and warranties set forth in Section 5 of this Sixth Amendment) shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Sixth Amendment Effective Date with the same
effect as though made on and as of the Sixth Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, if
qualified by materiality, in all respects) as of such earlier date;
(c) the
Administrative Agent shall have received from the Lead Borrower a certificate executed by a Responsible Officer of the Lead Borrower, certifying compliance with the requirements of preceding clause (b); and
(d) the “Effective
Date” shall have occurred under that certain Resignation and Assignment Agreement, dated as of May 22, 2018, by and among the Lead Borrower, Holdings, each Subsidiary Guarantor, Deutsche Bank AG New York Branch, as Existing Administrative Agent and
Existing Collateral Agent (each as defined therein), Royal Bank, as Successor Administrative Agent and Successor Collateral Agent (each as defined therein).
SECTION 3. Costs and
Expenses. The Lead Borrower hereby reconfirms its obligations pursuant to Section 9.03(a) of the Credit Agreement to pay and reimburse the Administrative Agent and its Affiliates for all reasonable and documented out-of-pocket costs
and expenses (including, without limitation, reasonable fees and out-of-pocket expenses of counsel) incurred in connection with the negotiation, preparation, execution and delivery of this Sixth Amendment and all other documents and instruments
delivered in connection herewith.
SECTION 4. Remedies.
This Sixth Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5. Representations
and Warranties. To induce the Administrative Agent to enter into this Sixth Amendment, the Lead Borrower hereby represents and warrants that, immediately prior to and immediately after giving effect to this Sixth Amendment:
(a) the execution,
delivery and performance by it of this Sixth Amendment and, in the case of Holdings and the Lead Borrower, the performance by it of the Credit Agreement (as amended hereby) does not (i) violate any provision of law applicable to it, its
Organization Documents, or any order, judgment or decree of any court or other agency of government binding on it, (ii) conflict with, result in a material breach of or constitute (with due notice or lapse of time or both) a material default under
any of its Contractual Obligations, (iii) result in or require the creation or imposition of any Lien (other than Liens in favor of the Collateral Agent) upon any of its properties or assets or (iv) require any approval of stockholders or any
approval or consent of any Person under any of its material Contractual Obligations, other than those approvals and consents which have been obtained;
(b) it has all
requisite organizational power and authority to enter into this Sixth Amendment and the execution, delivery and performance by it of this Sixth Amendment and, in the case of Holdings and the Lead Borrower, the performance by it of the Credit
Agreement (as amended hereby) has been duly authorized by all necessary organizational action by it;
(c) the Lead Borrower
has duly executed and delivered this Sixth Amendment, and this Sixth Amendment, the Credit Agreement (as amended hereby) and each other Loan Document to which it is a party constitutes the legally valid and binding obligations of it, enforceable
against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency,
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reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability; and
(d) each of the
representations and warranties set forth in the Credit Agreement and in the other Loan Documents are true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Sixth Amendment Effective Date with
the same effect as though made on and as of the Sixth Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or,
if qualified by materiality, in all respects) as of such earlier date.
SECTION 6. Reference to
and Effect on the Credit Agreement and the Loan Documents.
(a) On and after the
Sixth Amendment Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by this
Sixth Amendment.
(b) The Credit
Agreement and each of the other Loan Documents, as specifically amended by this Sixth Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the
foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the applicable Loan Parties under the Loan Documents, in each case, as amended by this Sixth
Amendment.
(c) The execution,
delivery and effectiveness of this Sixth Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.
SECTION 7. Governing Law. THIS SIXTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts.
This Sixth Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute
one and the same instrument. Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this Sixth Amendment shall be effective as delivery of an original executed counterpart of this Sixth Amendment.
[Signature Pages to follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Sixth Amendment to be duly
executed and delivered by the parties hereto as of the date first above written.
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SPECTRUM BRANDS, INC.,
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as the Lead Borrower
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By:
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/s/ Joanne P. Chomiak
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Name: Joanne P. Chomiak
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Title: Senior Vice President – Tax & Treasurer
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[Signature Page to Sixth Amendment to Spectrum Credit Agreement]
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ROYAL BANK OF CANADA,
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as Administrative Agent
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By:
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/s/ Rodica Dutka
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Name: Rodica Dutka
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Title: Manager, Agency
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[Signature Page to Sixth Amendment to Spectrum Credit Agreement]
Exhibit H
[FORM OF]
PREPAYMENT NOTICE
PREPAYMENT NOTICE
Royal Bank of Canada, as Administrative Agent
12th Floor, South Tower
Royal Bank Plaza, 200 Bay Street
Toronto, Ontario M5J 2W7
Attention: Manager, Agency Services
Fax: (416) 842-4023
Toronto, Ontario M5J 2W7
Attention: Manager, Agency Services
Fax: (416) 842-4023
[●], 20[●]
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement, dated as of June 23, 2015, by and among Spectrum
Brands, Inc., a Delaware corporation (the “Lead Borrower”), SB/RH Holdings, LLC, a Delaware limited liability company, the Lenders from time to time party thereto, Royal Bank of Canada, as administrative agent
(together with its successors and assigns in such capacity, the “Administrative Agent”) and as collateral agent (together with its successors and assigns in such capacity, the “Collateral
Agent”), and the other parties party thereto (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein
with the same meanings unless otherwise defined herein.
The undersigned hereby gives you notice pursuant to Section 2.11[(a)][(b)[●]] of the Credit Agreement
that it intends to make a prepayment on the terms set forth below:
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Payer:
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Currency:
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Date of prepayment:
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(which shall be a Business Day)
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In the principal amount of:
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[The calculations of such amount is set forth on Annex I | ||
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hereto]1 | ||
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Type of Loans:2
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Class of Borrowing:3
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1 To be
included for each prepayment required under Section 2.11(b)(i), (ii) or (iii) of the Credit Agreement.
2 State
whether a [Base] [Eurocurrency] Rate Loan.
3 State
whether Revolving Credit Loans, Swingline Loans, Term Loans or other applicable Class.
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SPECTRUM BRANDS, INC.
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By:
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Name:
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Title:
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Annex 1 to Exhibit H
[Calculation of Amount of Prepayment under Section 2.11(b)(i), (ii) or (iii)]
EXHIBIT 10.10
Execution Version
SEVENTH AMENDMENT TO CREDIT AGREEMENT
This SEVENTH AMENDMENT TO CREDIT AGREEMENT (this “Seventh Amendment”) dated as of April 3, 2020, by and
among SPECTRUM BRANDS, INC., a Delaware corporation (the “Lead Borrower”), SB/RH HOLDINGS LLC, a Delaware limited liability company (“Holdings”), ROYAL BANK OF CANADA (as successor to DEUTSCHE BANK AG NEW YORK BRANCH), as administrative
agent (in such capacity, the “Administrative Agent”) under the Loan Documents and the financial institutions party hereto (the “2020 Incremental Dollar Revolving Lenders”), as 2020 Incremental Dollar Revolving Lenders. Unless otherwise
indicated, all capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided to such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Lead Borrower, Holdings, the Administrative Agent, each lender from time to time party thereto (the
“Lenders”) and the other parties thereto have entered into the Credit Agreement, dated as of June 23, 2015 (as the same has been amended, restated, supplemented and/or otherwise modified from time to time prior to the Seventh Amendment
Effective Date referred to below, the “Credit Agreement”);
WHEREAS, the Lead Borrower has notified the Administrative Agent pursuant to Section 2.22 of the Credit
Agreement that it wishes to obtain a new tranche and Class of Revolving Commitments in an amount equal to $90,000,000, in accordance with the requirements set forth in Section 2.22 of the Credit Agreement and otherwise on the terms and
conditions provided herein (the “2020 Dollar Revolving Facility”, the revolving commitments of each 2020 Incremental Dollar Revolving Lender thereunder, the “2020 Dollar Revolving Credit Commitments” and the Loans made by each 2020
Incremental Dollar Revolving Lender pursuant thereto, the “2020 Dollar Revolving Loans”);
WHEREAS, the 2020 Incremental Dollar Revolving Lenders have severally, and not jointly, agreed to provide the
percentage of the 2020 Dollar Revolving Facility set forth opposite their respective names on Schedule I hereto, on the terms and conditions provided herein;
WHEREAS, contemporaneously with the effectiveness of the 2020 Dollar Revolving Facility on the Seventh Amendment
Effective Date, the Borrower wishes to (i) make certain amendments to the Credit Agreement to provide for the 2020 Dollar Revolving Facility, and (ii) make certain other modifications to the Credit Agreement set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements contained herein, the parties hereto agree as
follows:
SECTION 1. 2020
Dollar Revolving Facility.
(a) Subject to the
terms and conditions set forth herein and the occurrence of the Seventh Amendment Effective Date, the 2020 Incremental Dollar Revolving Lenders hereby agree severally, and not jointly, to provide the percentage of commitments in respect of the 2020
Dollar Revolving Facility set forth opposite their respective names on Schedule I hereto. On and after the Seventh Amendment Effective Date Incremental Revolving Loans incurred pursuant to the 2020 Dollar Revolving Facility shall constitute
“Revolving Loans” for all purposes of the Credit Agreement (as amended hereby) and the other applicable Loan Documents.
(b) Upon the occurrence
of the Seventh Amendment Effective Date (after giving effect to the 2020 Dollar Revolving Facility), the 2020 Incremental Dollar Revolving Lenders (i) shall be
obligated to provide the 2020 Dollar Revolving Facility as provided in this Seventh Amendment on the terms, and subject to the conditions, set forth in
the Credit Agreement (as amended hereby) and in this Seventh Amendment and (ii) to the extent provided in this Seventh Amendment, shall have the rights and obligations of a Lender thereunder and under the other applicable Loan Documents.
SECTION 2. Amendments.
Subject to the terms and conditions set forth herein and the occurrence of the Seventh Amendment Effective Date:
(a) the Credit
Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated
textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Annex I hereto; and
(b) Exhibit G to
the Credit Agreement is hereby amended and restated in the form attached hereto as Annex III.
(c) Schedule 1.01(a)
to the Credit Agreement is hereby amended and restated in the form attached hereto as Annex II.
SECTION 3. Conditions
of Effectiveness of this Seventh Amendment.
This Seventh Amendment shall become effective on the date when each of the following conditions shall have been
satisfied (such date, the “Seventh Amendment Effective Date”):
(a) the Lead Borrower,
the Administrative Agent, each 2020 Incremental Dollar Revolving Lender and Lenders comprising Required Revolving Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way
of facsimile or other electronic transmission) the same to Paul Hastings LLP;
(b) (i) on the Seventh
Amendment Effective Date both immediately prior to and after giving effect to this Seventh Amendment, no Default under Section 7.01(a), 7.01(f) or 7.01(g) or Event of Default shall exist and (ii) each of the representations
and warranties set forth in the Credit Agreement and in the other Loan Documents (including the representations and warranties set forth in Section 6 of this Seventh Amendment) shall be true and correct in all material respects (or, if
qualified by materiality, in all respects) on and as of the Seventh Amendment Effective Date with the same effect as though made on and as of the Seventh Amendment Effective Date, except to the extent such representations and warranties expressly
relate to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality, in all respects) as of such earlier date;
(c) the Administrative
Agent shall have received from the Lead Borrower a certificate executed by a Responsible Officer of the Lead Borrower, certifying compliance with the requirements of preceding clause (b);
(d) the Administrative
Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by a Responsible Officer of each of Holdings, the Lead Borrower and each Subsidiary Guarantor;
(e) the Administrative
Agent shall have received from the Lead Borrower a solvency certificate from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Lead Borrower substantially in the form of Exhibit M to the
Credit Agreement (modified as appropriate to give effect to this Seventh Amendment);
2
(f) the Administrative Agent shall have
received (i) either (x) a copy of the certificate or articles of incorporation or equivalent organizational document, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its
organization or (y) confirmation from such Loan Party that there has been no change to such organizational documents since last delivered to the Administrative Agent, (ii) a certificate of the secretary or assistant secretary of each Loan Party
dated the Seventh Amendment Effective Date and certifying (A) that (x) attached thereto is a true and complete copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party as in effect on the Seventh Amendment
Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below or (y) there has been no change to such governing documents since last delivered to the Administrative Agent, (B) that attached thereto
is a true and complete copy of resolutions duly adopted by the board of directors or other equivalent governing body of such Loan Party authorizing the execution, delivery and performance of this Seventh Amendment and/or the Acknowledgement and
Confirmation delivered pursuant to clause (d) above and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that any attached certificate or articles of incorporation, equivalent organizational
document, by-laws, operating, management, partnership or similar agreement of such Loan Party has not been amended (in the case of the articles of incorporation of each such Loan Party, since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (E) below), (D) to the extent not previously delivered to the Administrative Agent, as to the incumbency and specimen signature of each officer executing this Seventh Amendment or any other
document delivered in connection herewith on behalf of such Loan Party and (E) good standing certificates for each Loan Party from the jurisdiction in which it is organized, each dated a recent date prior to the Seventh Amendment Effective Date;
and (iii) a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate delivered pursuant to clause (ii) above;
(g) the Administrative
Agent, each 2020 Incremental Dollar Revolving Lender and the Lenders party hereto comprising Required Revolving Lenders shall have received a favorable written opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, as New York counsel to the
Loan Parties, reasonably acceptable to the Administrative Agent and each such 2020 Incremental Dollar Revolving Lender dated the Seventh Amendment Effective Date;
(h) the Administrative
Agent shall have received from the Lead Borrower a certificate executed by a Responsible Officer of the Lead Borrower, certifying that (A) all of the requirements of Section 2.22 of the Credit Agreement (as amended by this Seventh
Amendment) with respect to the 2020 Dollar Revolving Facility thereunder have been satisfied, (B) after giving effect to the 2020 Dollar Revolving Facility on the Seventh Amendment Effective Date, the First Lien Net Leverage Ratio is no more than
3.25:1.00 on a Pro Forma Basis (assuming a full drawing under the commitments in respect of the 2020 Dollar Revolving Facility) and (C) attaching detailed calculations of compliance with preceding clause (B); and
(i) the
Administrative Agent shall have received all fees to be paid by the Lead Borrower on the Seventh Amendment Effective Date pursuant to that certain Fee Letter, dated as of March 12, 2020 between the Lead Borrower and Royal Bank of Canada.
SECTION 4. Costs and
Expenses. The Lead Borrower hereby reconfirms its obligations pursuant to Section 9.03(a) of the Credit Agreement to pay and reimburse the Administrative Agent and each 2020 Incremental Dollar Revolving Lender and their respective
Affiliates for all reasonable and documented out-of-pocket costs and expenses (including, without limitation, reasonable fees and out-of-pocket expenses of counsel) incurred in connection with the negotiation, preparation, execution and delivery of
this Seventh Amendment and all other documents and instruments delivered in connection herewith.
3
SECTION 5. Remedies. This Seventh
Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 6. Representations
and Warranties. To induce the Administrative Agent and the 2020 Incremental Dollar Revolving Lenders to enter into this Seventh Amendment, each Loan Party hereto hereby represents and warrants that, immediately prior to and immediately after
giving effect to this Seventh Amendment:
(a) the execution,
delivery and performance by it of this Seventh Amendment and, in the case of Holdings and the Lead Borrower, the performance by it of the Credit Agreement (as amended hereby) does not (i) violate any provision of law applicable to it, its
Organization Documents, or any order, judgment or decree of any court or other agency of government binding on it, (ii) conflict with, result in a material breach of or constitute (with due notice or lapse of time or both) a material default under
any of its Contractual Obligations, (iii) result in or require the creation or imposition of any Lien (other than Liens in favor of the Collateral Agent) upon any of its properties or assets or (iv) require any approval of stockholders or any
approval or consent of any Person under any of its material Contractual Obligations, other than those approvals and consents which have been obtained;
(b) it has all
requisite organizational power and authority to enter into this Seventh Amendment and the execution, delivery and performance by it of this Seventh Amendment and, in the case of Holdings and the Lead Borrower, the performance by it of the Credit
Agreement (as amended hereby) has been duly authorized by all necessary organizational action by it;
(c) each Loan Party
party hereto has duly executed and delivered this Seventh Amendment, and this Seventh Amendment, the Credit Agreement (as amended hereby) and each other Loan Document to which it is a party constitutes the legally valid and binding obligations of
it, enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable
principles relating to enforceability;
(d) each of the
representations and warranties set forth in the Credit Agreement and in the other Loan Documents are true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Seventh Amendment Effective Date with
the same effect as though made on and as of the Seventh Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects
(or, if qualified by materiality, in all respects) as of such earlier date; and
(e) all of the
requirements of Section 2.22 of the Credit Agreement (as amended by this Agreement) with respect to the 2020 Dollar Revolving Facility have been satisfied.
SECTION 7. Reference
to and Effect on the Credit Agreement and the Loan Documents.
(a) On and after the
Seventh Amendment Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by this
Seventh Amendment.
(b) The Credit
Agreement and each of the other Loan Documents, as specifically amended by this Seventh Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the
foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all
4
Obligations of the applicable Loan Parties under the Loan Documents, in each case, as amended by this Seventh Amendment.
(c) The execution,
delivery and effectiveness of this Seventh Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents.
SECTION 8. Governing Law. THIS SEVENTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts.
This Seventh Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this Seventh Amendment shall be effective as delivery of an original executed counterpart of this Seventh
Amendment.
[Signature Pages to follow]
5
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Seventh Amendment to be duly
executed and delivered by the parties hereto as of the date first above written.
|
SPECTRUM BRANDS, INC.,
as the Lead Borrower
|
|||
|
By:
|
/s/ Joanne P. Chomiak
|
||
|
Name: Joanne P. Chomiak
|
|||
|
Title: Senior Vice President – Tax and Treasurer
|
|||
|
SB/RH HOLDINGS, LLC,
as Holdings
|
|||
|
By:
|
/s/ Ehsan Zargar
|
||
|
Name: Ehsan Zargar
|
|||
|
Title: Executive Vice President, General Counsel and Corporate Secretary
|
|||
[Signature Page to Seventh Amendment to Spectrum Credit Agreement]
|
ROYAL BANK OF CANADA, as Administrative Agent
|
||||
|
By:
|
/s/ Rodica Dutka
|
|||
|
Name: Rodica Dutka
|
||||
|
Title: Manager, Agency
|
||||
[Signature Page to Seventh Amendment to Spectrum Credit Agreement]
|
ROYAL BANK OF CANADA, as a 2020 Incremental Dollar Revolving Lender, a Revolving Lender and an Issuing Bank
|
||||
|
By:
|
/s/ Gordon MacArthur
|
|||
|
Name: Gordon MacArthur
|
||||
|
Title: Authorized Signatory
|
||||
[Signature Page to Seventh Amendment to Spectrum Credit Agreement]
|
BARCLAYS BANK PLC, as a 2020 Incremental Dollar Revolving Lender
|
||||
|
By:
|
/s/ Christopher M. Aitkin
|
|||
|
Name: Christopher M. Aitkin
|
||||
|
Title: Vice President
|
||||
|
CITIZENS BANK, N.A., as a 2020 Incremental Dollar Revolving Lender
|
||||
|
By:
|
/s/ Lawrence E. Ridgway
|
|||
|
Name: Lawrence E. Ridgway
|
||||
|
Title: Senior Vice President
|
||||
|
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a 2020 Incremental Dollar Revolving Lender
|
||||
|
By:
|
/s/ Doreen Barr
|
|||
|
Name: Doreen Barr
|
||||
|
Title: Authorized Signatory
|
||||
|
By:
|
/s/ Christopher Zybrick
|
|||
|
Name: Christopher Zybrick
|
||||
|
Title: Authorized Signatory
|
||||
|
Wells Fargo Bank, National Association, as a 2020
Incremental Dollar Revolving Lender
|
||||
|
By:
|
/s/ Mark Holm
|
|||
|
Name: Mark Holm
|
||||
|
Title: Managing Director
|
||||
[Signature Page to Seventh Amendment to Spectrum Credit Agreement]
|
BARCLAYS BANK PLC, as a Revolving Lender
|
||||
|
By:
|
/s/ Christopher M. Aitkin
|
|||
|
Name: Christopher M. Aitkin
|
||||
|
Title: Vice President
|
||||
|
CITIZENS BANK, N.A., as a Revolving Lender
|
||||
|
By:
|
/s/ Lawrence E. Ridgway
|
|||
|
Name: Lawrence E. Ridgway
|
||||
|
Title: Senior Vice President
|
||||
|
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Revolving Lender
|
||||
|
By:
|
/s/ Doreen Barr
|
|||
|
Name: Doreen Barr
|
||||
|
Title: Authorized Signatory
|
||||
|
By:
|
/s/ Christopher Zybrick
|
|||
|
Name: Christopher Zybrick
|
||||
|
Title: Authorized Signatory
|
||||
|
JPMORGAN CHASE BANK, N.A., as a Revolving Lender
|
||||
|
By:
|
/s/ Erik Barragan
|
|||
|
Name: Erik Barragan
|
||||
|
Title: Authorized Officer
|
||||
[Signature Page to Seventh Amendment to Spectrum Credit Agreement]
|
Wells Fargo Bank, National Association, as a Revolving Lender
|
||||
|
By:
|
/s/ Mark Holm
|
|||
|
Name: Mark Holm
|
||||
|
Title: Managing Director
|
||||
[Signature Page to Seventh Amendment to Spectrum Credit Agreement]
|
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Issuing Bank
|
||||
|
By:
|
/s/ Doreen Barr
|
|||
|
Name: Doreen Barr
|
||||
|
Title: Authorized Signatory
|
||||
|
By:
|
/s/ Christopher Zybrick
|
|||
|
Name: Christopher Zybrick
|
||||
|
Title: Authorized Signatory
|
||||
[Signature Page to Seventh Amendment to Spectrum Credit Agreement]
ANNEX I
See attached.
CREDIT AGREEMENT
dated as of June 23, 2015
among
SPECTRUM BRANDS, INC.
as the Lead Borrower,
SB/RH HOLDINGS, LLC,
as Holdings
THE LENDERS PARTY HERETO
and
ROYAL BANK OF CANADA
(as successor to Deutsche Bank AG New York Branch)
as Administrative Agent and Collateral Agent
and
DEUTSCHE BANK AG NEW YORK BRANCH, CREDIT SUISSE AG CAYMAN ISLANDS
BRANCH, JPMORGAN CHASE BANK, N.A., and BANK OF AMERICA, N.A.,
as Issuing Banks
and
DEUTSCHE BANK SECURITIES INC., CREDIT SUISSE SECURITIES (USA) LLC and
J.P. MORGAN SECURITIES LLC,
as Joint Bookrunners and Joint Lead Arrangers
and
CREDIT SUISSE SECURITIES (USA) LLC,
as Syndication Agent
and
J.P. MORGAN SECURITIES LLC,
as Documentation Agent
dated as of June 23, 2015
among
SPECTRUM BRANDS, INC.
as the Lead Borrower,
SB/RH HOLDINGS, LLC,
as Holdings
THE LENDERS PARTY HERETO
and
ROYAL BANK OF CANADA
(as successor to Deutsche Bank AG New York Branch)
as Administrative Agent and Collateral Agent
and
DEUTSCHE BANK AG NEW YORK BRANCH, CREDIT SUISSE AG CAYMAN ISLANDS
BRANCH, JPMORGAN CHASE BANK, N.A., and BANK OF AMERICA, N.A.,
as Issuing Banks
and
DEUTSCHE BANK SECURITIES INC., CREDIT SUISSE SECURITIES (USA) LLC and
J.P. MORGAN SECURITIES LLC,
as Joint Bookrunners and Joint Lead Arrangers
and
CREDIT SUISSE SECURITIES (USA) LLC,
as Syndication Agent
and
J.P. MORGAN SECURITIES LLC,
as Documentation Agent
TABLE OF CONTENTS
Page
|
ARTICLE 1
DEFINITIONS
|
||
|
Section 1.01
|
Defined Terms
|
1
|
|
Section 1.02
|
Classification of Loans and Borrowings
|
60
|
|
Section 1.03
|
Terms Generally
|
60
|
|
Section 1.04
|
Accounting Terms; GAAP
|
60
|
|
Section 1.05
|
Effectuation of Transactions
|
61
|
|
Section 1.06
|
Timing of Payment of Performance
|
61
|
|
Section 1.07
|
Times of Day
|
62
|
|
Section 1.08
|
Additional Alternative Currencies
|
62
|
|
Section 1.09
|
Currency Generally
|
62
|
|
Section 1.10
|
Cashless Rollovers
|
63
|
|
Section 1.11
|
Certain Calculations and Tests
|
63
|
|
Section 1.12
|
Rounding
|
64
|
|
Section 1.13
|
Available Amount Threshold
|
64
|
|
ARTICLE 2
THE CREDITS
|
||
|
Section 2.01
|
Commitments
|
64
|
|
Section 2.02
|
Loans and Borrowings
|
65
|
|
Section 2.03
|
Requests for Borrowings
|
66
|
|
Section 2.04
|
[Reserved]
|
67
|
|
Section 2.05
|
Letters of Credit
|
67
|
|
Section 2.06
|
[Reserved]
|
75
|
|
Section 2.07
|
Funding of Borrowings
|
75
|
|
Section 2.08
|
Type; Interest Elections
|
75
|
|
Section 2.09
|
Termination and Reduction of Commitments
|
76
|
|
Section 2.10
|
Repayment of Loans; Evidence of Debt
|
77
|
|
Section 2.11
|
Prepayment of Loans
|
78
|
|
Section 2.12
|
Fees
|
82
|
|
Section 2.13
|
Interest
|
83
|
|
Section 2.14
|
Alternate Rate of Interest
|
84
|
|
Section 2.15
|
Increased Costs
|
85
|
|
Section 2.16
|
Break Funding Payments
|
86
|
-i-
|
Section 2.17
|
Taxes
|
86
|
|
Section 2.18
|
Payments Generally; Allocation of Proceeds; Sharing of Payments
|
89
|
|
Section 2.19
|
Mitigation Obligations; Replacement of Lenders
|
91
|
|
Section 2.20
|
Illegality
|
92
|
|
Section 2.21
|
Defaulting Lenders
|
93
|
|
Section 2.22
|
Incremental Credit Extensions
|
95
|
|
Section 2.23
|
Extensions of Loans and Revolving Commitments
|
100
|
|
Section 2.24
|
Lead Borrower as Borrower Representative
|
103
|
|
Section 2.25
|
Currency Equivalents
|
103
|
|
Section 2.26
|
Ancillary Facilities
|
104
|
|
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
|
||
|
Section 3.01
|
Organization; Powers
|
109
|
|
Section 3.02
|
Authorization; Enforceability
|
109
|
|
Section 3.03
|
Governmental Approvals; No Conflicts
|
109
|
|
Section 3.04
|
Financial Condition; No Material Adverse Effect
|
109
|
|
Section 3.05
|
Properties; Intellectual Property
|
109
|
|
Section 3.06
|
Litigation and Environmental Matters
|
110
|
|
Section 3.07
|
Compliance with Laws
|
110
|
|
Section 3.08
|
Investment Company Status
|
110
|
|
Section 3.09
|
Taxes
|
110
|
|
Section 3.10
|
ERISA
|
110
|
|
Section 3.11
|
Disclosure
|
111
|
|
Section 3.12
|
Solvency
|
111
|
|
Section 3.13
|
Capitalization and Subsidiaries
|
111
|
|
Section 3.14
|
Security Interest in Collateral
|
111
|
|
Section 3.15
|
Labor Disputes
|
111
|
|
Section 3.16
|
Federal Reserve Regulations
|
112
|
|
Section 3.17
|
Economic and Trade Sanctions and Anti-Corruption Laws
|
112
|
|
Section 3.18
|
Senior Indebtedness
|
112
|
|
Section 3.19
|
Use of Proceeds
|
113
|
|
Section 3.20
|
Insurance
|
113
|
|
Section 3.21
|
Central Administration; COMI
|
113
|
-ii-
|
ARTICLE 4
CONDITIONS
|
||
|
Section 4.01
|
Closing Date
|
113
|
|
Section 4.02
|
Each Credit Extension
|
114
|
|
ARTICLE 5
AFFIRMATIVE COVENANTS
|
||
|
Section 5.01
|
Financial Statements and Other Reports
|
115
|
|
Section 5.02
|
Existence
|
117
|
|
Section 5.03
|
Payment of Taxes
|
117
|
|
Section 5.04
|
Maintenance of Properties
|
117
|
|
Section 5.05
|
Insurance
|
118
|
|
Section 5.06
|
Inspections
|
118
|
|
Section 5.07
|
Maintenance of Book and Records
|
118
|
|
Section 5.08
|
Compliance with Laws
|
118
|
|
Section 5.09
|
Environmental
|
119
|
|
Section 5.10
|
Designation of Subsidiaries
|
119
|
|
Section 5.11
|
Use of Proceeds
|
119
|
|
Section 5.12
|
Covenant to Guarantee Obligations and Give Security
|
120
|
|
Section 5.13
|
Maintenance of Ratings
|
121
|
|
Section 5.14
|
[Reserved]
|
121
|
|
Section 5.15
|
Further Assurances
|
121
|
|
Section 5.16
|
Closing Date Post-Closing Deliverables
|
121
|
|
ARTICLE 6
NEGATIVE COVENANTS
|
||
|
Section 6.01
|
Indebtedness
|
121
|
|
Section 6.02
|
Liens
|
127
|
|
Section 6.03
|
No Further Negative Pledges
|
131
|
|
Section 6.04
|
Restricted Payments; Certain Payments of Indebtedness
|
132
|
|
Section 6.05
|
Restrictions on Subsidiary Distributions
|
137
|
|
Section 6.06
|
Investments
|
138
|
|
Section 6.07
|
Fundamental Changes; Disposition of Assets
|
141
|
|
Section 6.08
|
[Reserved]
|
144
|
|
Section 6.09
|
Transactions with Affiliates
|
144
|
|
Section 6.10
|
Conduct of Business
|
146
|
-iii-
|
Section 6.11
|
Amendments or Waivers of Organizational Documents
|
146
|
|
Section 6.12
|
Amendments of or Waivers with Respect to Certain Agreements
|
146
|
|
Section 6.13
|
Fiscal Year
|
146
|
|
Section 6.14
|
Permitted Activities of Holdings
|
146
|
|
Section 6.15
|
Financial Covenant
|
147
|
|
Section 6.16
|
Center of Main Interests
|
148
|
|
ARTICLE 7
EVENTS OF DEFAULT
|
||
|
Section 7.01
|
Events of Default
|
148
|
|
ARTICLE 8
THE ADMINISTRATIVE AGENT
|
||
|
ARTICLE 9
MISCELLANEOUS
|
||
|
Section 9.01
|
Notices
|
157
|
|
Section 9.02
|
Waivers; Amendments
|
159
|
|
Section 9.03
|
Expenses; Indemnity
|
165
|
|
Section 9.04
|
Waiver of Claim
|
166
|
|
Section 9.05
|
Successors and Assigns
|
166
|
|
Section 9.06
|
Survival
|
174
|
|
Section 9.07
|
Counterparts; Integration; Effectiveness
|
175
|
|
Section 9.08
|
Severability
|
175
|
|
Section 9.09
|
Right of Setoff
|
175
|
|
Section 9.10
|
Governing Law; Jurisdiction; Consent to Service of Process
|
175
|
|
Section 9.11
|
Waiver of Jury Trial
|
176
|
|
Section 9.12
|
Headings
|
176
|
|
Section 9.13
|
Confidentiality
|
176
|
|
Section 9.14
|
No Fiduciary Duty
|
177
|
|
Section 9.15
|
Several Obligations
|
178
|
|
Section 9.16
|
USA PATRIOT Act
|
178
|
|
Section 9.17
|
Disclosure
|
178
|
|
Section 9.18
|
Appointment for Perfection
|
178
|
|
Section 9.19
|
Interest Rate Limitation
|
178
|
|
Section 9.20
|
Judgment Currency
|
178
|
|
Section 9.21
|
Conflicts
|
179
|
-iv-
|
Section 9.22
|
Release of Guarantors
|
179
|
SCHEDULES:
|
Schedule 1.01(a)
|
—
|
Commitment Schedule
|
|
Schedule 1.01(b)
|
—
|
Existing Letters of Credit
|
|
Schedule 1.01(c)
|
—
|
Post-AAG Integration Transaction Structure Chart
|
|
Schedule 3.05
|
—
|
Fee Owned Material Real Estate Assets
|
|
Schedule 3.13
|
—
|
Subsidiaries
|
|
Schedule 5.10
|
—
|
Unrestricted Subsidiaries
|
|
Schedule 5.16
|
—
|
Closing Date Post-Closing Deliverables
|
|
Schedule 6.01
|
—
|
Existing Indebtedness
|
|
Schedule 6.02
|
—
|
Existing Liens
|
|
Schedule 6.06
|
—
|
Existing Investments
|
|
Schedule 6.07
|
—
|
Certain Dispositions
|
|
Schedule 6.09
|
—
|
Affiliate Transactions
|
EXHIBITS:
|
Exhibit A-1
|
—
|
Form of Assignment and Assumption
|
|
Exhibit A-2
|
—
|
Form of Affiliated Lender Assignment and Assumption
|
|
Exhibit B
|
—
|
Form of Borrowing Request
|
|
Exhibit C
|
—
|
Form of Compliance Certificate
|
|
Exhibit D
|
—
|
Form of Interest Election Request
|
|
Exhibit E
|
—
|
Form of Perfection Certificate
|
|
Exhibit F
|
—
|
Form of Perfection Certificate Supplement
|
|
Exhibit G
|
—
|
Form of Promissory Note
|
|
Exhibit H
|
—
|
Form of Prepayment Notice
|
|
Exhibit I
|
—
|
Form of Guaranty Agreement
|
|
Exhibit J
|
—
|
Form of Security Agreement
|
|
Exhibit K
|
—
|
Form of Letter of Credit Request
|
|
Exhibit L-1
|
—
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-2
|
—
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-3
|
—
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-4
|
—
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit M
|
—
|
Form of Solvency Certificate
|
|
Exhibit N
|
—
|
Form of Pari First Lien Intercreditor Agreement
|
|
Exhibit O
|
—
|
Form of First Lien/Second Lien Intercreditor Agreement
|
-v-
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 23, 2015 (the “Agreement”) by and among SPECTRUM BRANDS,
INC., a Delaware corporation (the “Lead Borrower”), SB/RH HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), the Lenders (such term and each other
capitalized term used but not defined in this introductory statement having the meaning given to it in Article I), ROYAL BANK OF CANADA (“Royal Bank”), in its capacities as administrative agent for the
Lenders (as successor to Deutsche Bank AG New York Branch) (in such capacity, including any successor thereto, the “Administrative Agent”), as collateral agent for the Lenders (as successor to Deutsche Bank AG
New York Branch) (in such capacity, including any successor thereto, the “Collateral Agent”), and DEUTSCHE BANK AG NEW YORK BRANCH (“DBNY”), CREDIT SUISSE AG CAYMAN
ISLANDS BRANCH (“CS”), JPMORGAN CHASE BANK, N.A. (“JPM”) and BANK OF AMERICA, N.A. (“BofA”), each as an Issuing Bank.
RECITALS
A. The Lead Borrower has requested that, immediately upon (or contemporaneously with) the satisfaction in full of the applicable
conditions precedent set forth in Section 4.01 below, the initial Term Lenders extend credit to the Lead Borrower in the form of (i) term loans denominated in U.S. Dollars in the aggregate principal amount of $1,450 million, (ii) term loans
denominated in Euros in the aggregate principal amount of €300 million and (iii) term loans denominated in Canadian Dollars in the aggregate principal amount of CAD$75 million.
B. The Lead Borrower has requested that, immediately upon (or contemporaneously with) the satisfaction in full of the applicable
conditions precedent set forth in Section 4.01 below, the initial Revolving Lenders extend credit to the Borrowers in the form of U.S. Dollar revolving commitments in the aggregate initial commitment amount equivalent to $350 million and
multicurrency revolving commitments in the aggregate commitment amount equivalent to $150 million, in each case for the making, from time to time, of revolving loans; same day base rate loans denominated in U.S. Dollars; ancillary facilities; and the
issuance, from time to time, of letters of credit, in each case on the terms and subject to the conditions set forth in this Agreement.
C. The initial Lenders have indicated their willingness to extend such credit, and the Issuing Banks have indicated their willingness
to issue Letters of Credit, in each case on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Defined Terms. As used
in this Agreement, the following terms have the meanings specified below:
“2016 Converting Lender” has the meaning assigned to such term in the First Amendment.
“2016 Replacement USD Term Commitment” has the meaning assigned to such term in the First
Amendment.
“2016 Replacement USD Term Loans” has the meaning assigned to such term in the First
Amendment.
“2016 Replacement USD Term Loan Lender” has the meaning assigned to such term in the First
Amendment.
“2016 Replacement USD Term Loan Conversion Amount” shall mean, as to any 2016 Converting
Lender, the amount determined by the Administrative Agent and the Lead Borrower as the final amount of such 2016 Converting Lender’s 2016 Replacement USD Term Loan Conversion on the First Amendment Effective Date and notified to each such 2016
Converting Lender by the Administrative Agent on or prior to the
-1-
First Amendment Effective Date. The “2016 Replacement USD Term Loan Conversion Amount” of any 2016 Converting Lender shall not exceed (but may be less
than) the principal amount of such 2016 Converting Lender’s Original Refinanced USD Term Loans. Al such determinations made by the Administrative Agent and the Lead Borrower shall, absent manifest error, be final, conclusive and binding on the Lead
Borrower and the Lenders, and the Administrative Agent and the Borrowers shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct (in each case, as determined by a court of competent
jurisdiction in a final and non-appealable judgment).
“2016 USD Term Loan Conversion” has the meaning assigned to such term in the First Amendment.
“2017 Converting Lender” has the meaning assigned to such term in the Third Amendment.
“2017 Incremental USD Term Loan” has the meaning assigned to such term in the Third Amendment.
“2017 Incremental USD Term Loan Commitment” has the meaning assigned to such term in the Third
Amendment.
“2017 Incremental USD Term Loan Lender” has the meaning assigned to such term in the Fourth
Amendment.
“2017 New USD Term Loans” has the meaning assigned to such term in Section 2.01(a).
“2017 Refinanced USD Term Loans” has the meaning assigned to such term in the Third Amendment.
“2017 Replacement USD Term Commitment” has the meaning assigned to such term in the Third
Amendment.
“2017 Replacement USD Term Loan” has the meaning assigned to such term in the Third Amendment.
“2017 Replacement USD Term Loan Lender” has the meaning assigned to such term in the Third
Amendment.
“2017 Replacement USD Term Loan Conversion Amount” shall mean, as to any 2017 Converting
Lender, the amount determined by the Third Amendment Arranger and the Lead Borrower as the final amount of such 2017 Converting Lender’s 2017 Replacement USD Term Loan Conversion on the Third Amendment Effective Date and notified to each such 2017
Converting Lender by the Third Amendment Arranger on or prior to the Third Amendment Effective Date. The “2017 Replacement USD Term Loan Conversion Amount” of any 2017 Converting Lender shall not exceed (but may be less than) the principal amount of
such 2017 Converting Lender’s 2017 Refinanced USD Term Loans. All such determinations made by the Third Amendment Arranger and the Lead Borrower shall, absent manifest error, be final, conclusive and binding on the Administrative Agent, the Lead
Borrower and the Lenders, and the Administrative Agent, the Third Amendment Arranger and the Borrowers shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct (in each case, as determined
by a court of competent jurisdiction in a final and non-appealable judgment).
“2017 USD Term Loan Conversion” has the meaning assigned to such term in the Third Amendment.
“2020 Dollar Revolving Applicable Percentage” means, with respect to any 2020 Dollar Revolving Lender for any Class, the percentage of the 2020 Total
Dollar Revolving Credit Commitment represented by such Lender’s 2020 Dollar Revolving Credit Commitment for such Class; provided that for purposes of
-2-
Section 2.21 and otherwise herein, when there is a Defaulting Lender, any such Defaulting Lender’s 2020 Dollar Revolving Credit Commitment shall be disregarded in the relevant calculations. In the event the 2020
Dollar Revolving Credit Commitments for any Class shall have expired or been terminated, the 2020 Dollar Revolving Applicable Percentages of any 2020 Dollar Revolving Lender of such Class shall be determined on the basis of the 2020 Dollar
Revolving Credit Exposure of the applicable 2020 Dollar Revolving Lenders of such Class, giving effect to any assignments and to any 2020 Dollar Revolving Lender’s status as a Defaulting Lender at the time of determination.
“2020 Dollar Revolving Credit Commitment” means, with respect to each Lender, the commitment of such Lender to make 2020 Dollar Revolving Loans
hereunder as set forth on the Commitment Schedule, or in the Assignment and Assumption pursuant to which such Lender assumed its 2020 Dollar Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to
Section 2.09, Section 2.11, Section 2.19 or Section 9.02(c), (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.05, (c) increased as part of an Incremental Revolving Facility or (d) other
than for purposes of determining the Required Lenders or the Required Revolving Lenders, if such Lender is an Ancillary Lender, decreased by the amount of such Lender’s Ancillary Commitment (and increased to the extent such Ancillary Commitment is
subsequently reduced, cancelled or terminated).
“2020 Dollar Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all 2020
Dollar Revolving Loans of such Lender.
“2020 Dollar Revolving Facility” means, at any time, the aggregate amount of the 2020 Dollar Revolving Lenders’ 2020 Dollar Revolving Credit
Commitments at such time, which shall be funded in U.S. Dollars.
“2020 Dollar Revolving Lender” means a Lender with a 2020 Dollar Revolving Credit Commitment or an Additional Revolving Commitment or an
outstanding2020 Dollar Revolving Loan or Additional Revolving Loan.
“2020 Dollar Revolving Loans” means the revolving Loans under the 2020 Dollar Revolving Facility made by the Lenders to the Lead Borrower pursuant to
Section 2.01(a)(ii), 2.22, 2.23 or 9.02(c)(ii).
“2020 Dollar Revolving Credit Maturity Date” means the date that is five years after the Second Amendment Effective Date.
“2020 Notes” means the 6.750% senior notes due 2020, par value $300,000,000 principal
amount outstanding as of the Closing Date, issued pursuant to the Indenture, dated as of March 20, 2012, by and among Spectrum Brands, Inc., the guarantors party thereto and US Bank National Association, as trustee, as supplemented from time to time
through the date hereof.
“AAG Integration Transactions” means any transaction of Disposition, merger, consolidation or
amalgamation, liquidation, winding up, dissolution, Investment or Restricted Payment in connection with the corporate and restructuring steps effected by the Lead Borrower and its Subsidiaries to merge and integrate the acquired businesses of Armored
AutoGroup Parent Inc. and Salix Animal Health, LLC with the existing business of the Lead Borrower and its Restricted Subsidiaries, consistent with the steps memorandum provided to the Joint Lead Arrangers dated June 3, 2015, in order to implement
the corporate structure set forth on Schedule 1.01(c).
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate or the Canadian Base Rate, as applicable.
“ACH” means automated clearing house transfers.
“Additional Agreement” has the meaning assigned to such term in Article 8.
-3-
“Additional Borrowers” means the Additional Term Borrowers, the Pre-Approved Borrowers and the
Other Non-U.S. Revolving Facility Borrowers.
“Additional Commitments” means any commitments hereunder added pursuant to Section 2.22,
2.23 or 9.02(c).
“Additional Incremental Rights” has the meaning assigned to such term in Section 2.22(a)(xiii).
“Additional Lender” has the meaning assigned to such term in Section 2.22(b).
“Additional Loans” means the Additional Revolving Loans and the Additional Term Loans.
“Additional Revolving Commitments” means any revolving credit commitment added pursuant to Section 2.22,
2.23 or 9.02(c)(ii).
“Additional Revolving Facility” means any revolving credit facility added pursuant to Section 2.22,
2.23 or 9.02(c)(ii).
“Additional Revolving Loans” means any revolving loan added hereunder pursuant to Section 2.22,
2.23 or 9.02(c)(ii).
“Additional Rights” has the meaning assigned to such term in Section 6.01(p).
“Additional Rights to Extending Revolving Lenders” has the meaning assigned to such term in Section 2.23(a)(i).
“Additional Rights to Incremental Equivalent Debt Lenders” has the meaning assigned to such
term in Section 6.01(z).
“Additional Term Borrowers” has the meaning assigned to such term in the definition of “Term
Borrowers”.
“Additional Term Commitments” means any term commitment added pursuant to Section 2.22,
2.23 or 9.02(c)(i).
“Additional Term Loans” means any term loan added pursuant to Section 2.22, 2.23
or 9.02(c)(i).
“Adjustment Date” means the date of delivery of financial statements required to be delivered
pursuant to Section 5.01(a) or Section 5.01(b), as applicable.
“Administrative Agent” has the meaning assigned to such term in the preamble to this
Agreement.
“Administrative Questionnaire” has the meaning assigned to such term in Section 2.22(d).
“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Holdings, the Lead Borrower or any of its Restricted Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign
(including any Environmental Claim), whether pending or, to the knowledge of Holdings, the Lead Borrower or any of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Lead Borrower or any of its Restricted
Subsidiaries or any property of Holdings, the Lead Borrower or any of its Restricted Subsidiaries.
-4-
“Affiliate” means, as applied to any Person, any other Person directly or indirectly Controlling,
Controlled by, or under common Control with, that Person. None of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt Fund Affiliate) or any of their respective Affiliates shall be considered an
Affiliate of Holdings or any subsidiary thereof.
“Affiliate Ancillary Borrower” means any Affiliate of a Borrower (or, with respect to the Lead
Borrower only, any Restricted Subsidiary of the Lead Borrower) that becomes a Borrower in respect of an Ancillary Facility pursuant to Section 2.26(b).
“Affiliated Lender” means any Non-Debt Fund Affiliate, Holdings, the Lead Borrower and/or any
subsidiary of Holdings.
“Affiliated Lender Assignment and Assumption” means an assignment and assumption entered into
by a Lender and an Affiliated Lender (with the consent of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit A-2 or any other form approved by the Administrative Agent
and the Lead Borrower.
“Affiliated Lender Cap” has the meaning assigned to such term in Section 9.05(g)(iv).
“Aggregate 2020 Dollar Revolving Credit Exposure” means, at any time, the aggregate amount of the Lenders’ 2020 Dollar Revolving Credit Exposures at
such time.
“Aggregate Dollar Revolving Credit Exposure” means, at any time, the aggregate amount of the
Lenders’ Dollar Revolving Credit Exposures at such time.
“Aggregate Multicurrency Revolving Credit Exposure” means, at any time, the aggregate amount
of the Lenders’ Multicurrency Revolving Credit Exposures at such time.
“Aggregate Revolving Credit Exposure” means, at any time, the aggregate amount of the Lenders’
Revolving Credit Exposures at such time.
“Agreement” has the meaning assigned to such term in the preamble to this Agreement.
“Agreement Currency” has the meaning assigned to such term in Section 9.20.
“Alternate Base Rate” means, for any day, with respect to Loans denominated in U.S. Dollars, a
rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such day plus 0.50% (provided that such rate shall not be less than 0%),
(b) to the extent ascertainable, the Published LIBO Rate (which rate shall be calculated based upon an Interest Period of one month and shall be determined on a daily basis) plus 1.00%; and (c) the Prime
Rate. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Published LIBO Rate, as the case may be, shall be effective from and including the effective date of such change in the Prime
Rate, the Federal Funds Effective Rate or the Published LIBO Rate, as the case may be.
“Alternative Currencies” has the meaning assigned to such term in the definition of
“Multicurrency Revolving Facility”.
“Alternative Currency Alternate Rate” means, with respect to any Alternative Currency (other
than Canadian Dollars) in any jurisdiction, the rate of interest per annum determined by the Administrative Agent to be the rate of interest either (x) charged by it to borrowers of similar quality as the applicable Borrower for short-term loans in
such Alternative Currency in such jurisdiction or (y) notified to the Administrative Agent by that Lender as soon as practicable after notice is given under Section 2.14 or Section 2.20, as applicable, and in any event before interest
is due to be paid in respect of the applicable Interest Period, based on the cost to that Lender of funding its participation in that Eurocurrency Rate Loan. Notwithstanding anything to the contrary contained
-5-
herein, Eurocurrency Rate Loans may only be made or maintained as Alternative Currency Alternate Rate Loans only to the extent specified in Section 2.14
or Section 2.20, as applicable.
“Ancillary Commencement Date” means, with respect to any Ancillary Facility, the date (which
must be a Business Day) on which such Ancillary Facility is first made available.
“Ancillary Commitment” means, with respect to any Ancillary Lender and any Ancillary Facility,
the maximum applicable Dollar Equivalent amount which such Ancillary Lender has agreed (whether or not subject to the satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility in accordance with Section 2.26
hereof to the extent such amount has not been cancelled or reduced under this Agreement or the Ancillary Documents relating to such Ancillary Facility.
“Ancillary Document” means each document or instrument relating to or evidencing the terms of
an Ancillary Facility designated by the Lead Borrower, the Ancillary Lender and the Administrative Agent as an “Ancillary Document”.
“Ancillary Facility” means (a) any overdraft, automated payment, check drawing and/or other
current account facility, (b) any short term loan facility denominated in local currencies, (c) any foreign exchange facilities, (d) any letter of credit, suretyship, guarantee and/or bonding facility or any other instrument to provide a contingent
liability, (e) any derivatives facility and/or (f) any other facility or financial accommodation that may be required in connection with the business of the Lead Borrower and its Restricted Subsidiaries.
“Ancillary Lender” means each Multicurrency Revolving Lender (or Affiliate of a Multicurrency
Revolving Lender) that makes available an Ancillary Facility in accordance with Section 2.26.
“Ancillary Outstandings” means, at any time, with respect to any Ancillary Lender and any
Ancillary Facility then in effect, the Dollar Equivalent of the sum of the following amounts outstanding under such Ancillary Facility: (a) the principal amount owing under each overdraft facility and on-demand short term loan facility (net of any
credit balance on any account of any Borrower or Restricted Subsidiary under any Ancillary Facility with the relevant Ancillary Lender to the extent that such credit balance is freely available to be set off by such Ancillary Lender against
liabilities owing by such Borrower under such Ancillary Facility), (b) the face amount of each guaranty, bond and letter of credit provided or issued under such Ancillary Facility and (c) the amount fairly representing the aggregate exposure
(excluding interest and similar charges) of such Ancillary Lender under each other type of accommodation provided under such Ancillary Facility, in each case as determined by such Ancillary Lender acting reasonably in accordance with its normal
banking practice and the terms of the relevant Ancillary Document.
“Ancillary Obligations” means all obligations in respect of Ancillary Outstandings.
“Applicable Percentage” means, (a) with respect to any Term Lender for any Class, a percentage
equal to a fraction the numerator of which is the aggregate outstanding principal amount of the Loans and unused Additional Commitments of such Term Lender for such Class and the denominator of which is the aggregate outstanding principal amount of
the Loans and unused Commitments of all Term Lenders for such Class and (b) with respect to any Revolving Lender for any Class, the percentage of the Total Revolving Credit Commitment for such Class represented by such Lender’s Revolving Credit
Commitment for such Class; provided that for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, any such Defaulting Lender’s Revolving Credit Commitment shall be
disregarded in the relevant calculations. In the case of clause (b), in the event the Revolving Credit Commitments for any Class shall have expired or been terminated, the Applicable Percentages of any Revolving Lender of such Class shall be
determined on the basis of the Revolving Credit Exposure of the applicable Revolving Lenders of such Class, giving effect to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Applicable Rate” means, for any day:
-6-
(a) with respect to Initial Term Loans, the rate per annum applicable to the relevant Class of Loans set forth below under the caption “ABR Spread”, “LIBO Rate Spread”, “BA Rate
Spread” or “EURIBOR Rate Spread” as the case may be:
|
ABR Spread for USD Term Loans
|
LIBO Rate Spread for USD
Term Loans denominated in US Dollars
|
|
1.00%
|
2.00%
|
|
ABR Spread for CAD Term Loans
|
BA Spread for CAD Term Loans
|
|
2.50%
|
3.50
|
|
EURIBOR Rate Spread for Euro Term Loans
|
|
|
2.75%
|
|
(b) with respect to Revolving Loans, the rate per annum applicable to the relevant Class of Loans set forth below under the caption “ABR Spread”, “LIBO Rate Spread”, “BA Rate Spread”
or “EURIBOR Rate Spread” as the case may be, based upon the Total Leverage Ratio as of the last day of the most recently ended Test Period; provided that until the first Adjustment Date following the
completion of at least one full Fiscal Quarter ended after the Second Amendment Effective Date, the “Applicable Rate” shall be the applicable rate per annum set forth below in Category 2:
|
Total
Leverage Ratio |
ABR Spread
for Dollar
Revolving Loans
|
LIBO Rate
Spread for
Dollar
Revolving Loans
|
ABR Spread
for CAD
Revolving Loans
|
BA Rate
Spread
for CAD
Revolving Loans
|
EURIBOR
Rate Spread
for Euro
Revolving Loans
|
ABR Spread
for 2020
Dollar
Revolving Loans
|
LIBO Rate
Spread for
2020 Dollar
Revolving Loans
|
|||||||||||||||||||||
|
Category 1
|
||||||||||||||||||||||||||||
|
Greater than 4.00 to 1.00
|
1.25
|
%
|
2.25
|
%
|
1.25
|
%
|
2.25
|
%
|
2.75
|
%
|
1.50
|
%
|
2.50
|
%
|
||||||||||||||
|
Category 2
|
||||||||||||||||||||||||||||
|
Less than or equal to 4.00 to 1.00 but greater than 2.50 to 1.00
|
1.00
|
%
|
2.00
|
%
|
1.00
|
%
|
2.00
|
%
|
2.00
|
%
|
1.25
|
%
|
2.25
|
%
|
||||||||||||||
|
Category 3
|
||||||||||||||||||||||||||||
|
Less than or equal to 2.50 to 1.00
|
0.75
|
%
|
1.75
|
%
|
0.75
|
%
|
1.75
|
%
|
1.75
|
%
|
1.00
|
%
|
2.00
|
%
|
||||||||||||||
The Applicable Rate shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the Total Leverage Ratio in accordance with the
tables above; provided that if financial statements are not delivered
-7-
when required pursuant to Section 5.01(a) or (b), as applicable, the “Applicable Rate” shall be the rate per annum set forth above in
Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.
“Applicable Time” means, with respect to any borrowings and payments in any Alternative
Currency (other than Euros or Pounds Sterling), the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the applicable Issuing Bank, 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.
“Approved Fund” means, with respect to any Lender, any Person (other than a natural person)
that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered, advised or managed by (a) such Lender, (b) any Affiliate of such
Lender or (c) any entity or any Affiliate of any entity that administers, advises or manages such Lender.
“Arrangers” means, (w) with respect to the Initial Term Loans (other than the 2016 Replacement
USD Term Loans and the 2017 Replacement USD Term Loans) and the Initial Revolving Credit Commitments, each of Deutsche Bank Securities Inc., Credit Suisse Securities (USA) LLC and J.P. Morgan Securities LLC, (x) with respect to the 2016 Replacement
USD Term Loans, Deutsche Bank Securities Inc. in its capacity as sole bookrunner and sole lead arranger, (y) with respect to the Second Amendment, (i) each of Deutsche Bank Securities Inc., Credit Suisse Securities (USA) LLC, JPMorgan Chase Bank N.A.
and RBC Capital Markets1, as joint bookrunners and joint lead arrangers and (ii) each of Royal Bank of Canada, Credit Suisse Securities (USA) LLC and JPMorgan Chase Bank
N.A. as co-documentation agents and (z) with respect to the 2017 Replacement USD Term Loans (including the 2017 Incremental USD Term Loans), RBC Capital Markets and Deutsche Bank Securities Inc., as joint bookrunners and joint lead arrangers.
“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 9.05), and accepted by the Administrative Agent in the form of Exhibit A-1 or any other form approved by the Administrative Agent and the Lead Borrower.
“Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other
financial institution or advisor engaged by the Lead Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant to the definition of “Dutch Auction”; provided that the Lead Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no
obligation to agree to act as the Auction Agent); provided, further, that neither the Lead Borrower nor any of its Affiliates may act as the Auction Agent.
“Auction Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Notice” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Party” has the meaning set forth in the definition of “Dutch Auction”.
“Auction Response Date” has the meaning assigned to such term in the definition of “Dutch
Auction”.
1 RBC
Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.
-8-
“Available Amount” means, at any time, an amount equal to, without duplication:
(a) the sum of:
(i) $350,000,000; plus
(ii) 50% of the
Consolidated Net Income of the Lead Borrower for the period (taken as one accounting period) from October 1, 2014 to the end of the Lead Borrower’s most recently ended fiscal quarter in respect of which a Compliance Certificate has been delivered
hereunder (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus
(iii) the amount of
any capital contributions or other proceeds of any issuance of Capital Stock after December 4, 2014 (other than any amounts (x) constituting a Cure Amount or an Available Excluded Contribution Amount or an Excluded Debt Contribution or proceeds of an
issuance of Disqualified Capital Stock, (y) received from the Lead Borrower or any Restricted Subsidiary or (z) incurred from the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)) received as Cash equity by the Lead
Borrower or any of its Restricted Subsidiaries, plus the fair market value, as reasonably determined by the Lead Borrower, of Cash Equivalents, marketable securities or other property received by the Lead
Borrower or any Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (x) constituting a Cure Amount or an Available Excluded Contribution Amount or an Excluded Debt Contribution or
proceeds of any issuance of Disqualified Capital Stock or (y) received from the Lead Borrower or any Restricted Subsidiary), in each case, during the period from and including the day immediately following December 4, 2014 through and including such
time; plus
(iv) the aggregate
principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Lead Borrower or any Restricted Subsidiary issued after December 4, 2014 (other than Indebtedness or such Disqualified Capital Stock issued to the Lead Borrower
or any Restricted Subsidiary), which has been converted into or exchanged for Capital Stock of the Lead Borrower, any Restricted Subsidiary or any Parent Company that does not constitute Disqualified Capital Stock, together with the fair market value
of any Cash Equivalents and the fair market value (as reasonably determined by the Lead Borrower) of any property or assets received by the Lead Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period
from and including the day immediately following December 4, 2014 through and including such time; plus
(v) the net
proceeds received by the Lead Borrower or any Restricted Subsidiary during the period from and including the day immediately following the Closing Date through and including such time in connection with the Disposition to any Person (other than the
Lead Borrower or any Restricted Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi) to the extent
not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, the proceeds received by the Lead Borrower or any Restricted Subsidiary during the period from and including the
day immediately following the Closing Date through and including such time in connection with Cash returns, Cash profits, Cash distributions and similar Cash amounts, including Cash principal repayments of loans, in each case received in respect of
any Investment made after the Closing Date pursuant to Section 6.06(r)(i) (in an amount not to exceed the original amount of such Investment); plus
(vii) an amount
equal to the sum of (A) the amount of any Investments by the Lead Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary (in an amount not to exceed the original amount of such Investment) that has
been redesignated as a Restricted Subsidiary, or has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved into, the Lead Borrower or any Restricted Subsidiary and (B) the fair market value (as reasonably
determined by the Lead Borrower) of the property or
-9-
assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed (in an amount not to exceed the
original amount of the Investment in such Unrestricted Subsidiary pursuant to Section 6.06(r)(i)) to the Lead Borrower or any Restricted Subsidiary, in each case, during the period from and including the day immediately following the Closing
Date through and including such time; minus
(b) an amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt
Payments made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in each case, after the Closing Date and prior to such time, or contemporaneously
therewith.
“Available Ancillary Commitment” means, with respect to any Ancillary Facility, the relevant
Ancillary Lender’s Ancillary Commitment minus the amount of Ancillary Outstandings under such Ancillary Facility.
“Available Excluded Contribution Amount” means the aggregate amount of Cash or Cash
Equivalents or the fair market value of other assets or property (as reasonably determined by the Lead Borrower, but excluding any Cure Amount) received by the Lead Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1) contributions
in respect of Qualified Capital Stock (other than any amounts received from the Lead Borrower or any of its Restricted Subsidiaries), and
(2) the sale of
Qualified Capital Stock of the Lead Borrower or any of its Restricted Subsidiaries (other than (x) to the Lead Borrower or any Restricted Subsidiary of the Lead Borrower, (y) pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in each case, designated as Available Excluded Contribution Amounts pursuant to a certificate of a Responsible Officer on or promptly after the date the
relevant capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded from the calculation of the Available Amount.
“BA Rate” means, in respect of any Interest Period, the higher of the average rate applicable
to Canadian Dollar bankers’ acceptances for a period equal to such Interest Period appearing on the “Reuters Screen CDOR Page” (as defined in the International Swaps and Derivatives Association, Inc. 2000 definitions, as modified and amended from
time to time), rounded to the nearest 1/100th of 1% (with .005% being rounded up), at approximately 11:00 a.m. (Eastern Time), on the related Interest Rate Determination Date, provided that if such rate
does not appear on the Reuters Screen CDOR Page on such day the BA Rate on such day shall be the rate for such period applicable to Canadian Dollar bankers’ acceptances quoted by a bank listed in Schedule I of the Bank Act (Canada), as selected by
the Administrative Agent, as of 11:00 a.m. (Eastern Time) on such day or, if such day is not a Business Day, then on the immediately preceding Business Day plus 0.10% per annum; provided that (x) BA Rate
shall not be less than 0% and (y) solely in the case of Term Loans, the BA Rate shall not be less than 0.75%.
“Banking Services” means each and any of the following bank services provided to any Loan
Party (a) under any arrangement that is in effect on the Closing Date between any Loan Party and a counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger as of the Closing Date or (b) under any arrangement
that is entered into after the Closing Date by any Loan Party with any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger at the time such arrangement is entered into: commercial credit cards, stored
value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and
interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with cash management and Deposit Accounts.
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“Banking Services Obligations” means any and all obligations of any Loan Party, whether absolute
or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), in connection with Banking Services, in each case, that has been designated to
the Administrative Agent in writing by the Lead Borrower as being Banking Services Obligations for the purposes of the Loan Documents, it being understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its
agent under the applicable Loan Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10, as if it were a Lender.
“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Board” means the Board of Governors of the Federal Reserve System of the U.S.
“BofA” has the meaning assigned to such term in the preamble to this Agreement.
“Bona Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or
unregulated lending entity that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any Person controlling,
controlled by or under common control with (a) any competitor of the Lead Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but with respect to which no personnel involved with any investment in such Person (i) makes,
has the right to make or participates with others in making any investment decisions with respect to such debt fund, investment vehicle, regulated bank entity or unregulated lending entity or (ii) has access to any information (other than information
that is publicly available) relating to Holdings, the Lead Borrower or their respective subsidiaries or any entity that forms a part of any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not
include any Person that is separately identified to the Arrangers in accordance with clause (a) of the definition of “Disqualified Institution” or any Affiliate of any such Person that is reasonably identifiable on the basis of such
Affiliate’s name.
“Borrower Joinder Agreement” means a borrower joinder agreement in a form (including
structural and tax considerations (including customary tax provisions for Borrowers incorporated in any jurisdiction other than the U.S., to the extent not already provided for in this Agreement, in Section 2.17 and related definitions,
including gross-up provisions with respect to the obligations of the U.K. Borrower on terms satisfactory to the Administrative Agent and the Arrangers) and collateral and guarantee arrangements (including collateral allocation mechanism
arrangements)) reasonably satisfactory to the Administrative Agent and the Lead Borrower.
“Borrower Representative” means the entity appointed to act on behalf of the Borrowers
pursuant to Section 2.24.
“Borrowers” means the Term Borrowers and the Revolving Facility Borrowers; provided that if any Non-U.S. Borrower incurs any Obligations under a Non-U.S. Facility, and if the Administrative Agent and the Lenders holding such Obligations agree that collateral in a non-U.S. jurisdiction
will be provided to support such Non-U.S. Obligations, then the Borrowers and the Administrative Agent on behalf of the Lenders will enter into an agreement that will include customary collateral allocation mechanism sharing provisions between such
Non-U.S. Facility and the U.S. Credit Facilities that will be automatically triggered upon the occurrence of an event of default resulting from (i) bankruptcy, insolvency proceedings, etc., (ii) inability to pay debts, attachment, etc., (iii) payment
default on final maturity or (iv) an acceleration of the loans or commitments under such Non-U.S. Facility; provided, further, to the extent (x) that any portion of such Non-U.S. Facility is made available
in a currency other than U.S. Dollars or (y) any portion of the Revolving Facility, Incremental Revolving Facility or Revolving Facility incurred pursuant to a Refinancing Amendment may be funded in currency other than U.S. Dollars, the customary
collateral allocation mechanism settlement currency will be U.S. Dollars pursuant to which Outstanding Amounts denominated in a currency other than U.S. Dollars of any Borrower will convert into, and continue as, U.S. Dollar-denominated Obligations.
“Borrowing” means any Loans of the same Type and Class made, converted or continued on the
same date and, in the case of Eurocurrency Rate Loans as to which a single Interest Period is in effect.
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“Borrowing Request” means a request by a Borrower for a Borrowing in accordance with Section 2.03
and substantially in the form attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Lead Borrower.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with an ABR Loan, a Eurocurrency Rate Loan or any other Loan in an Alternative Currency, the
term “Business Day” shall also exclude any day on which banks are not open for dealings in the London interbank market and/or the principal financial center of the country of such Alternative Currency (and, if the Borrowings or LC
Disbursements which are the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in euro, the term “Business Day” shall also exclude any TARGET Day).
“CAD Term Commitment” means, with respect to each CAD Term Lender, the commitment, if any, of
such Lender to make a CAD Term Loan on the Closing Date, expressed as the maximum principal amount of the CAD Term Loan to be made by such Lender, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such CAD Term Lender pursuant to Section 9.05. The initial amount of each Lender’s CAD Term Commitment is set forth on Schedule 1.01(a), or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its CAD Term Commitment, as applicable. The initial aggregate amount of the Lenders’ CAD Term Commitments is C$75,000,000.
“CAD Term Lender” means each Lender that has a CAD Term Commitment or that extends CAD Term
Loans to the Lead Borrower.
“CAD Term Loan” has the meaning assigned to such term in Section 2.01(a).
“CAD Term Loan Facility” means the Canadian Dollar term loan facility established pursuant to
Section 2.01(a)(i)(c).
“Canadian Anti-Terrorism Laws” means any Canadian law, judgment, order, executive order,
decree, ordinance, rule or regulation related to terrorism financing or money laundering including Part II.1 of the Criminal Code, R.S.C. 1985, c.C-46, the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, regulations promulgated pursuant to the Special Economic Measures Act, S.C. 1992, c. 17 and the United
Nations Act, R.S.C. 1985, c. U-2, in each case, as amended.
“Canadian Base Rate” means the highest of (x) the rate of interest per annum established from
time to time by the Administrative Agent as the reference rate of interest for the determination of interest rates that the Administrative Agent will charge to customers in Canada for Canadian Dollar demand loans in Canada, and (y) the rate of
interest per annum that is equal to the BA Rate for an interest period of one month plus 1.00% per annum; provided that (x) Canadian Base Rate shall not be less than 0% and (y) solely in the case of Term
Loans, the Canadian Base Rate shall not be less than 1.75%.
“Canadian Borrower” has the meaning assigned to such term in the definition of “Revolving
Facility Borrowers”.
“Canadian Dollars” and “C$” means the lawful currency of Canada.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.
“Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to
-12-
purchase or other arrangements or rights to acquire any of the foregoing, but excluding for the avoidance of doubt any Indebtedness convertible into or
exchangeable for any of the foregoing.
“Cash” means money, currency or a credit balance in any Deposit Account, in each case
determined in accordance with GAAP.
“Cash Equivalents” means, as at any date of determination, (a) readily marketable securities
(i) issued or directly and unconditionally guaranteed or insured as to interest and principal by the U.S. government or (ii) issued by any agency or instrumentality of the U.S. the obligations of which are backed by the full faith and credit of the
U.S., in each case maturing within one year after such date and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations issued by any state of the U.S. or any political
subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if
at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto;
(c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor
Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar
instruments) maturing within one year after such date and issued or accepted by any Lender or by any bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state thereof or the District of Columbia or any political
subdivision thereof and that has capital and surplus of not less than $100,000,000 and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; and (e) shares of any money market mutual fund that has (i) substantially
all of its assets invested in the types of investments referred to in clauses (a) through (d) above, (ii) net assets of not less than $250,000,000 and (iii) a rating of at least A-2 from S&P or at least P-2 from Moody’s.
In the case of any Investment by any Foreign Subsidiary, “Cash Equivalents” shall also include (x) Investments of the type and
maturity described in clauses (a) through (e) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have the ratings described in such clauses or equivalent ratings from comparable foreign rating
agencies and (y) other short-term Investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the Investments described in clauses (a) through (e) and in
this paragraph.
“Cashless Settlement Letter” means that certain cashless settlement letter agreement, dated
the date hereof, among the Administrative Agent and the “Lead Borrower”, the “Canadian Borrower”, the “German Borrower” and the “Administrative Agent” under and as defined in the Existing Term Loan Credit Agreement and the Existing Term Loan Lenders
party thereto.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“CFC Holdco” means a direct or indirect Domestic Subsidiary substantially all of whose assets
consist of the capital stock of one or more CFCs.
“Change in Law” means (a) the adoption of any law, treaty, rule or regulation after the
Closing Date, (b) any change in any law, treaty, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b),
by any lending office of such Lender or such Issuing Bank or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or
issued after the Closing Date (other than any such request, guideline or directive to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of this definition and Section 2.15, (x) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or U.S. or foreign
-13-
regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (a), (b) and (c) above, be
deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented.
A “Change of Control” shall be deemed to have occurred if (a) any “person” or “group” (within
the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the Closing Date), other than the Permitted Investors, shall own, directly or indirectly, beneficially or of record, shares representing more than (i) 35% of the
aggregate ordinary voting power represented by the issued and outstanding capital stock of Super Holdco and (ii) the aggregate ordinary voting power represented by the issued and outstanding capital stock of Super Holdco directly or indirectly owned
by the Permitted Investors, (b) a majority of the seats (other than vacant seats) on the board of directors of Super Holdco shall at any time be occupied by persons who were neither (i) nominated by the board of directors of Super Holdco (or any
committee thereof with the authority to nominate directors) or the Permitted Investors nor (ii) appointed by directors so nominated, (c) any change in control (or similar event, however denominated) with respect to Super Holdco, Holdings or the Lead
Borrower shall occur under and as defined in any indenture or agreement in respect of Indebtedness exceeding the Threshold Amount, (d) Super Holdco shall cease to directly own, beneficially and of record, 100% of the issued and outstanding Capital
Stock of Holdings, (d) Holdings shall cease to directly own, beneficially and of record, 100% of the issued and outstanding Capital Stock of the Lead Borrower or (e) following the joinder of any additional Borrowers, as permitted hereunder, and for
so long as such Borrower has any Obligations, the Lead Borrower shall cease to directly or indirectly own, beneficially and of record, 100% of the issued and outstanding Capital Stock of any other Borrower.
“Charge” means any charge, fee, expense, cost, losses, accrual or reserve of any kind.
“Charged Amounts” has the meaning assigned to such term in Section 9.19.
“Class”, when used in reference to any Loan, Borrowing or Commitment, refers to whether such
Loan, or the Loans comprising such Borrowing, are Initial Term Loans, Revolving Loans (or as applicable, Dollar Revolving Loans, 2020 Dollar Revolving Loans or Multicurrency Revolving Loans) or respective Commitments related thereto or other
loans or commitments added as a separate Class pursuant to Section 2.22, 2.23 or 9.02(c).
“Closing Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).
“Code” means the Internal Revenue Code of 1986 as amended.
“Collateral” means any and all property of any Loan Party subject (or purported to be subject)
to a Lien under any Collateral Document and any and all other property of any Loan Party, now existing or hereafter acquired, that is or becomes subject (or purported to be subject) to a Lien pursuant to any Collateral Document to secure the Secured
Obligations.
“Collateral Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Collateral and Guarantee Requirement” means, at any time, subject to (x) the applicable
limitations set forth in this Agreement and/or any other Loan Document and (y) the time periods (and extensions thereof) set forth in Section 5.12, the requirement that:
(a) the Administrative Agent shall have
received:
(i) (A) a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement in substantially the
form attached as an exhibit thereto, (C) if the respective Loan Party required to comply with the requirements set forth in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents, Trademarks and/or
Copyrights that constitute Collateral, any Notices of Grant of Security Interest in Intellectual Property, (D) the information required by the Perfection Certificate for the Loan Party and (E) UCC financing statements in appropriate form for filing
in such jurisdictions as the Administrative Agent may reasonably request; and
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(ii) each item of Collateral that such Loan Party is required to deliver under Section 2.02 of
the Security Agreement (which, for the avoidance of doubt, shall be delivered within the time periods set forth in Section 5.12(a));
(b) the Administrative Agent shall have received with respect to any Material Real Estate Assets acquired after the Closing Date, a
Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary and appropriate (as reasonably determined by the Administrative Agent and the Lead Borrower):
(i) evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding UCC or equivalent
fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may reasonably deem necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of
the Administrative Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings have been duly recorded or filed, as applicable, and (C) all filing and recording taxes and fees have been paid
or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(ii) one or more fully paid policies of title insurance (the “Mortgage Policies”) in an amount reasonably acceptable to the
Administrative Agent (not to exceed the fair market value of the Material Real Estate Asset covered thereby (as reasonably determined by the Lead Borrower)) issued by a nationally recognized title insurance company in the applicable jurisdiction that
is reasonably acceptable to the Administrative Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein with the ranking or the priority which it is expressed to have in such Mortgage,
subject only to Permitted Liens, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in the applicable jurisdiction;
(iii) customary legal opinions of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is located, and if
applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may reasonably request; and
(iv) surveys (or no-change affidavits or similar documents sufficient for the title insurance company issuing the Mortgage Policies to omit the preprinted survey
exception therein and issue the endorsements required by clause (ii) above) and appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and, no later than 5 Business Days before the
effective day of any Mortgage, “Life-of-Loan” flood certifications and any borrower notices required under Regulation H (together with evidence of available federal flood insurance for any such Flood Hazard Property located in a flood hazard area); provided that the Administrative Agent may in its reasonable discretion accept any such existing survey, appraisal, certification or notice so long as such existing survey, appraisal, certification or notice
satisfies any applicable legal requirements.
“Collateral Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage,
(iii) each Notice of Grant of Security Interest in Intellectual Property, (iv) any supplement to any of the foregoing delivered to the Administrative Agent pursuant to the definition of “Collateral and Guarantee Requirement”, (v) the Perfection
Certificate (including any Perfection Certificate delivered to the Administrative Agent pursuant to the definition of “Collateral and Guarantee Requirement”) and any Perfection Certificate Supplement (including any Perfection Certificate Supplement
delivered to the Administrative Agent pursuant to the definition of “Collateral and Guarantee Requirement”) and (vi) each of the other instruments and documents pursuant to which any Loan Party grants a Lien on any Collateral as security for payment
of the Secured Obligations.
“Commercial Letter of Credit” means any Letter of Credit issued for the purpose of providing
the primary payment mechanism in connection with the purchase of any materials, goods or services by the Lead Borrower or any of its subsidiaries in the ordinary course of business of such Person.
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“Commercial Tort Claim” has the meaning set forth in Article 9 of the UCC.
“Commitment” means, with respect to each Lender, such Lender’s Initial Term Loan Commitment,
Revolving Credit Commitment and Additional Commitment, as applicable, in effect as of such time.
“Commitment Fee Rate” means, for each calendar quarter or portion thereof, the applicable rate
per annum set forth below based upon the Total Leverage Ratio as of the last day of the last Test Period; provided that until the first Adjustment Date following the completion of at least one full Fiscal
Quarter ending after the Second Amendment Effective Date, the “Commitment Fee Rate” shall be the applicable rate per annum set forth below in Category 1:
|
Total Leverage Ratio
|
Dollar Revolving Facility and Multicurrency Revolving Facility Commitment Fee Rate
|
2020 Dollar Revolving Facility Commitment Fee Rate
|
||||||
|
Category 1
|
||||||||
|
Greater than 2.50 to 1.00
|
0.35
|
%
|
0.40
|
%
|
||||
|
Category 2
|
||||||||
|
Equal to or less than 2.50 to 1.00
|
0.30
|
%
|
0.35
|
%
|
||||
The Commitment Fee Rate shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the Total Leverage Ratio in accordance with
the table set forth above; provided that if financial statements are not delivered when required pursuant to Section 5.01(a) or (b), as applicable, the Commitment Fee Rate shall be
the rate per annum set forth above in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.
“Commitment Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company Competitor” means any competitor of the Borrowers and/or any of their subsidiaries.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential Information” has the meaning assigned to such term in Section 9.13.
“Consolidated Adjusted EBITDA” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication:
(a) provision for taxes based on income or profits
of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus
(b) Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that any such Fixed Charges were
deducted in computing such Consolidated Net Income; plus
(c) depreciation, amortization (including amortization of goodwill, software and other intangibles but excluding amortization of
prepaid Cash expenses that were paid in a prior period) and other non-Cash expenses (excluding any such non-Cash expense to the extent that it represents an accrual of or reserve for Cash expenses in any future period or amortization of a prepaid
Cash expense that was paid in a prior period) of such Person and its
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Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-Cash expenses were deducted in computing such
Consolidated Net Income; plus
(d) (i) unusual or non-recurring charges, (ii) relocation costs and integration costs or reserves (including such items related to
proposed and completed acquisitions and Dispositions and to closure/consolidation of facilities), (iii) Transaction Costs, (iv) Prior Transaction Costs, (v) severance costs, including such costs related to proposed and completed Investments permitted
by this Agreement and Dispositions and to closure/consolidation of facilities, in each case incurred by the Lead Borrower and its Restricted Subsidiaries and (vi) transaction fees and Charges (1) incurred in connection with the consummation of any
transaction (or any transaction proposed and not consummated) permitted under this Agreement, including the issuance or offering of Capital Stock, Investments, acquisitions, Dispositions, recapitalizations, mergers, consolidations or amalgamations,
option buyouts or incurrences, repayments, refinancings, amendments or modifications of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums and prepayment penalties) or similar transactions
and/or (2) that are actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance; provided that in respect of any fee, cost,
expense or reserve that is added back in reliance on clause (2) above, such Person in good faith expects to receive reimbursement for such fee, cost, expense or reserve within the next four Fiscal Quarters (it being understood that to the extent any
reimbursement amount is not actually received within such Fiscal Quarters, such reimbursement amount shall be deducted in calculating Consolidated Adjusted EBITDA for such Fiscal Quarters); plus
(e) the amount of cost savings, operational expense improvements and synergies projected by such Person in good faith to be
realized as a result of actions taken during such period or to be taken in connection with a transaction that is being given pro forma effect (calculated on a pro forma basis as though such cost savings, operational expense improvements and synergies
had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that a duly completed certificate signed by a Responsible
Officer of the Lead Borrower shall be delivered to the Administrative Agent together with the Officer’s Certificate required to be delivered pursuant to Section 5.01(c), certifying that (x) such cost savings, operational expense improvements
and synergies are reasonably identifiable and factually supportable (in the good faith determination of such Person, as certified by a chief financial officer, treasurer or equivalent officer of such Person) and (y) such cost savings, operational
expense improvements and synergies are expected in good faith to be realized within 18 months of the end of such period; provided, further, that the aggregate amount included in Consolidated Adjusted EBITDA
pursuant to this clause (e) for any period shall not exceed15% of Consolidated Adjusted EBITDA (calculated prior to giving effect to any adjustments pursuant to this clause (e)); minus
(f) to the extent such amounts otherwise increase Consolidated Net Income, (i) non- Cash items increasing such Consolidated Net Income
for such period other than the accrual of revenue consistent with past practice, in each case, on a consolidated basis and determined in accordance with GAAP, (ii) unrealized net gains (x) due to fluctuations in currency values and the related tax
effects or (y) in the fair market value of any arrangements under Derivative Transactions, (iii) the amount included in Consolidated Net Income pursuant to clause (ix) of the definition thereof (as described in such clause) to the extent the relevant
business interruption insurance proceeds were not received within the time period required by such clause, and (iv) to the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (c)
above, the Cash payment in respect thereof in the relevant future period.
Notwithstanding anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First
Lien Leverage Ratio, the Secured Leverage Ratio and the Fixed Charge Coverage Ratio for any period that includes the Fiscal Quarters ended March 29, 2015, December 31, 2014, September 30, 2014 or June 30, 2014, (i) Consolidated Adjusted EBITDA for
the Fiscal Quarter ended March 29, 2015 shall be deemed to be $198 million, (ii) Consolidated Adjusted EBITDA for the Fiscal Quarter ended December 31, 2014 shall be deemed to be $192 million, (iii) Consolidated Adjusted EBITDA for the Fiscal Quarter
ended September 30, 2014 shall be deemed to be $217 million, and (iv) Consolidated Adjusted EBITDA for the Fiscal Quarter ended June 30, 2014 shall be deemed to be $257 million; provided that (x) for the
four Fiscal Quarter period ended March 29, 2015, Consolidated Adjusted EBITDA, calculated on a Pro Forma Basis, shall be deemed to be $864 million and (y) for any subsequent four Fiscal Quarter period that includes any of the Fiscal Quarters
described under clauses (ii) through (iv) above, Consolidated Adjusted EBITDA shall include the applicable amounts set forth in such clauses and the Pro Forma Basis calculation shall be in accordance with the terms thereof.
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“Consolidated First Lien Debt” means, as to any Person at any date of determination, the
aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries.
“Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:
(i) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid in Cash to the specified Person or a Restricted Subsidiary thereof;
(ii) the Net Income of any Restricted Subsidiary (other than a Subsidiary Guarantor) shall be excluded to the
extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its equityholders;
(iii) the Net Income of any Person acquired during the specified period for any period prior to the date of such
acquisition shall be excluded;
(iv) the cumulative effect of a change in accounting principles shall be excluded;
(v) notwithstanding clause (i) above, the Net Income (but not loss) of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the specified Person or one of its Subsidiaries;
(vi) (a) unrealized gains and losses due solely to fluctuations in currency values and the related tax effects
according to GAAP shall be excluded (until realized, at which time such gains or losses shall be included); and (b) unrealized gains and losses with respect to obligations under any Derivative Transactions shall be excluded (until realized, at which
time such gains or losses shall be included);
(vii) any non-Cash charge or expense realized or resulting from stock option plans, employee benefit plans or post-
employment benefit plans, or grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, Disqualified Capital Stock or other rights shall be excluded;
(viii) (a)(i) the non-Cash portion of “straight line” rent expense less (ii) the Cash portion of “straight
line” rent expense which exceeds the amount expensed in respect of such rent expense shall be excluded and (b) non-Cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP and
related interpretations shall be excluded (until realized, at which time such gains or losses shall be included);
(ix) to the extent covered by insurance and actually reimbursed, or, so long as such Person has made a
determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) approved by the applicable carrier in writing within 180 days and (b) in fact reimbursed
within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), (i) expenses with respect to liability or casualty events or business interruption shall be excluded and
(ii) amounts received, or estimated in good faith to be received, from insurance in respect of lost earnings in respect of liability or causality events or business interruption shall be included (with a deduction for (x) amounts actually received up
to such
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estimated amount to the extent included in Net Income in a future period and (y) for estimated amounts in excess of amounts actually
received in a future period);
(x) any charges resulting from the application of FASB ASC 350, Intangibles —
Goodwill and Other, Accounting Standards Codification Topic 360-10-35-15, Impairment or Disposal of Long-Lived Assets, Accounting Standards Codification Topic 480-10-25-4, Distinguishing Liabilities from Equity—Overall Recognition, or Accounting Standards Codification Topic 820 Fair Value Measurements and Disclosures, the amortization of intangibles arising
pursuant to FASB ASC 805, Business Combinations, non-Cash interest expense resulting from the application of Accounting Standards Codification Topic 470-20 Debt—Debt with
Conversion Options—Recognition, and any non-Cash income tax expense that results from the inability to include deferred tax liabilities related to indefinite-lived intangible assets as future reversals of temporary differences under FASB
ASC 740-10-30-18, shall be excluded; and
(xi) restructuring and related charges and acquisition and related integration charges, including but not limited
to, restructuring charges related to the Prior Transactions and the Transactions, shall be excluded.
Notwithstanding the foregoing, for the purpose of calculating the Available Amount only, there shall be excluded from Consolidated Net
Income, without duplication, any income consisting of dividends, repayments of loans or advances or other transfers of assets from non-wholly owned Restricted Subsidiaries, Unrestricted Subsidiaries or joint ventures to the Lead Borrower or any of
its Restricted Subsidiary, and any income consisting of a return of capital, repayment or other proceeds from dispositions or repayments of Investments, in each case to the extent such income would be included in Consolidated Net Income and such
related dividends, repayments, transfers, return of capital or other proceeds are applied by the Loan Parties to increase the Available Amount.
“Consolidated Secured Debt” means, as to any Person at any date of determination, the
aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries.
“Consolidated Total Assets” means, at any date, all amounts that would, in conformity with
GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated Total Debt” means, as to any Person at any date of determination, the aggregate
principal amount of all third party debt for borrowed money (including LC Disbursements that have not been reimbursed in accordance with the terms hereof and the outstanding principal balance of all Indebtedness of such Person represented by notes,
bonds and similar instruments), Capital Leases and purchase money Indebtedness (but excluding, for the avoidance of doubt, undrawn letters of credit).
“Consolidated Working Capital” means, as at any date of determination, the excess of Current
Assets over Current Liabilities.
“Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the
amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period; provided that
there shall be excluded (a) the effect of reclassification during such period between current assets and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give effect to such
reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent
obligations under any Hedge Agreement, and (d) the application of purchase or recapitalization accounting.
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“Contract Consideration” has the meaning assigned to such term in the definition of “Excess
Cash Flow”.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“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.
“Copyright” means the following: (a) all copyrights, rights and interests in copyrights, works
protectable by copyright whether published or unpublished, copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of
the foregoing, including, without limitation, damages or payments for past or future infringements for any of the foregoing; (d) the right to sue for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding to
any of the foregoing.
“Credit Extension” means each of (i) the making of a Revolving Loan or (ii) the issuance,
amendment, modification, renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase the Stated Amount of the relevant Letter of Credit).
“Credit Facilities” means the Term Loan Facility (which for the avoidance of doubt shall
include the 2017 Replacement USD Term Loan) and the Revolving Facility.
“CS” has the meaning assigned to such term in the preamble to this Agreement.
“Cure Amount” has the meaning assigned to such term in Section 6.15(b).
“Cure Right” has the meaning assigned to such term in Section 6.15(b).
“Current Assets” means, at any time the consolidated current assets (other than Cash and Cash
Equivalents, the current portion of current and deferred Taxes, permitted loans made to third parties, assets held for sale, pension assets, deferred bank fees and derivative financial instruments) of any Person and its Restricted Subsidiaries.
“Current Liabilities” means, at any time, the consolidated current liabilities of any Person
and its Restricted Subsidiaries at such time, but excluding, without duplication, (a) the current portion of any long-term Indebtedness, (b) outstanding revolving loans, (c) the current portion of interest expense, (d) the current portion of any
Capital Lease, (e) the current portion of current and deferred Taxes, (f) liabilities in respect of unpaid earn-outs, (g) the current portion of any other long-term liabilities, (h) accruals relating to restructuring reserves, (i) liabilities in
respect of funds of third parties on deposit with the Lead Borrower or any of its Restricted Subsidiaries, (j) any liability in respect of derivative financial instruments and (k) any liabilities recorded in connection with stock-based awards,
partnership interest-based awards, awards of profits interests, deferred compensation awards and similar incentive based compensation awards or arrangements.
“Daily Rate” means, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternative Currency Alternate Rate.
“DBNY” has the meaning assigned to such term in the preamble to this Agreement.
“Debt Fund Affiliate” means any Affiliate of any Permitted Investor (other than a natural
person) that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing,
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holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course of business and the
investment decisions of which are not controlled by any Permitted Investor.
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the U.S. or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
“Declined Proceeds” has the meaning assigned to such term in Section 2.11(b)(v).
“Default” means any event or condition which upon notice, lapse of time or both would become
an Event of Default.
“Defaulting Lender” means any Lender that has (a) defaulted in its obligations under this
Agreement, including without limitation, (x) to make a Loan within two Business Days of the date required to be made by it hereunder or (y) to fund its participation in a Letter of Credit required to be funded by it hereunder within two Business Days
of the date such obligation arose or such Loan or Letter of Credit was required to be made or funded, (b) notified the Administrative Agent or any Issuing Bank or any Loan Party in writing that it does not intend to satisfy any such obligation or has
made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally, (c) failed, within two Business Days after the request of
Administrative Agent or the Lead Borrower, to confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent, (d) after the Closing Date, become (or
any parent company thereof has become) insolvent or been determined by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management of which has been taken over by any
Governmental Authority or (e) after the Closing Date, become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any
Lender subject to this clause (e), the Lead Borrower and the Administrative Agent shall each have determined that such Lender intends, and has all approvals required to enable it (in form and substance satisfactory to each of the Lead
Borrower and the Administrative Agent), to continue to perform its obligations as a Lender hereunder; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the ownership or
acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in or provide such Lender with immunity from the jurisdiction of courts
within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract or agreement to which such Lender is a party.
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
“Derivative Transaction” means (a) any interest-rate transaction, including any interest-rate
swap, basis swap, forward rate agreement, interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar credit risks (including when-issued securities and forward deposits
accepted), (b) any exchange-rate transaction, including any cross-currency interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that gives rise to similar credit risks,
(c) any equity derivative transaction, including any equity-linked swap, any equity-linked option, any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity (including
precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers,
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employees, members of management, managers or consultants of the Lead Borrower or its subsidiaries shall be a Derivative Transaction.
“Designated Gross Amount” means the amount notified by the applicable Revolving Facility
Borrower to the Administrative Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Gross Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.
“Designated Net Amount” means the amount notified by the relevant Revolving Facility Borrower
to the Administrative Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Net Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.
“Designated Non-Cash Consideration” means the fair market value (as determined by the Lead
Borrower in good faith) of non-Cash consideration received by the Lead Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) that is designated as Designated Non-Cash Consideration pursuant to a
certificate of a Responsible Officer of the Lead Borrower, setting forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection with a subsequent sale or conversion of such
Designated Non- Cash Consideration to Cash or Cash Equivalents).
“Discount Range” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Disposition” or “Dispose” means the sale, lease,
sublease, or other disposition of any property of any Person.
“Disqualified Capital Stock” means any Capital Stock which, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other
than for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock and other than upon an asset sale or change in control if such right
is subject to the prior payment in full of the Obligations), in whole or in part, on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption is in part, only
such part coming into effect prior to 91 days following the Latest Maturity Date shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (c) contains any mandatory repurchase
obligation or any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, which may come into effect prior to 91 days following the Latest Maturity Date at the time such Capital
Stock is issued (it being understood that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date shall constitute Disqualified Capital Stock) or (d) provides for the
scheduled payments of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that any Capital Stock that would not constitute
Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such
Capital Stock upon the occurrence of any change in control or any Disposition occurring prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if such Capital Stock
provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the Termination Date.
Notwithstanding the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors,
officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of Holdings, the Lead
Borrower or any Restricted Subsidiary, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations,
and (B) no Capital Stock held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or Immediate Family Members) of the Lead Borrower (or any Parent Company or any
subsidiary) shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management
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equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder
agreement or similar agreement that may be in effect from time to time.
“Disqualified Institution” means (a) each bank, financial institution or other institutional
lender and Company Competitor or Affiliate of a Company Competitor identified on a list made available to the Arrangers on June 15, 2015 (as such list may be supplemented from time to time by the Lead Borrower pursuant to clause (b) below) and
(b) any other person designated in writing to the Administrative Agent after the Closing Date to the extent such person becomes a Company Competitor or is or becomes an Affiliate of a Company Competitor (and is reasonably identifiable as such on the
basis of such Affiliate’s name), which designation shall become effective two days after delivery of each such written supplement to the Administrative Agent, but which shall not apply retroactively to disqualify any persons that have previously
acquired an assignment or participation interest in the Loans; provided that a Company Competitor or an Affiliate of a Company Competitor shall not include any Bona Fide Debt Fund.
“Dollar Equivalent” means, with respect to (i) an amount denominated in U.S. Dollars, such
amount, (ii) an amount denominated in any Alternative Currency, the equivalent in U.S. Dollars of such amount determined at the Exchange Rate on the applicable date designated by the Administrative Agent, and (iii) any Ancillary Commitment (or
Ancillary Outstandings), (A) if the amount specified in the notice delivered to the Administrative Agent by the Borrower pursuant to Section 2.26(a)(ii) is in U.S. Dollars, the amount thereof and (B) if the amount specified is denominated in
Alternative Currency, the amount thereof converted to U.S. Dollars in accordance with Section 1.09.
“Dollar LC Disbursement” means a payment or disbursement made by an Issuing Bank pursuant to a
Dollar Letter of Credit.
“Dollar LC Exposure” means, at any time, the sum of (a) the aggregate undrawn and unexpired
amount of all outstanding Dollar Letters of Credit at such time and (b) the aggregate principal amount of all Dollar LC Disbursements that have not yet been reimbursed at such time. The Dollar LC Exposure of any Revolving Lender at any time shall
equal its Dollar Revolving Applicable Percentage of the aggregate Dollar LC Exposure at such time. For all purposes of this Agreement, (x) if on any date of determination a Dollar 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 International Standby Practices (ISP98), such Dollar Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn and (y) unless otherwise
specified herein, the amount of a Dollar Letter of Credit at any time shall be deemed to be the stated amount of such Dollar Letter of Credit in effect at such time; provided that with respect to any Dollar
Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Dollar Letter of Credit shall be deemed to be the maximum stated amount of
such Dollar Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
“Dollar LC Obligations” means, at any time, the sum of (a) the amount available to be drawn
under Dollar Letters of Credit then outstanding, assuming compliance with all requirements for drawings referenced therein, plus (b) the aggregate principal amount of all unreimbursed Dollar LC
Disbursements.
“Dollar Letter of Credit” means any Standby Letter of Credit or Commercial Letter of Credit
denominated in U.S. Dollars issued (or, in the case of any Existing Letter of Credit, deemed to be issued) pursuant to this Agreement under the Dollar Revolving Facility.
“Dollar Letter of Credit Sublimit” means $70 million.
“Dollar Revolving Applicable Percentage” means, with respect to any Dollar Revolving Lender
for any Class, the percentage of the Total Dollar Revolving Credit Commitment represented by such Lender’s Dollar Revolving Credit Commitment for such Class; provided that for purposes of Section 2.21
and otherwise herein, when there is a Defaulting Lender, any such Defaulting Lender’s Dollar Revolving Credit Commitment shall be disregarded in the relevant calculations. In the event the Dollar Revolving Credit Commitments for any Class shall have
expired or been terminated, the Dollar Revolving Applicable Percentages of any Dollar Revolving Lender of such Class shall be determined on the basis of the Dollar Revolving Credit Exposure of the applicable Dollar
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Revolving Lenders of such Class, giving effect to any assignments and to any Dollar Revolving Lender’s status as a Defaulting Lender at the time of
determination.
“Dollar Revolving Credit Commitment” means, with respect to each Lender, the commitment of
such Lender to make Dollar Revolving Loans (and acquire participations in Dollar Letters of Credit) hereunder as set forth on the Commitment Schedule, or in the Assignment and Assumption pursuant to which such Lender assumed its Dollar Revolving
Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09, Section 2.11, Section 2.19 or Section 9.02(c), (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.05, (c) increased as part of an Incremental Revolving Facility or (d) other than for purposes of determining the Required Lenders or the Required Revolving Lenders, if such Lender is an
Ancillary Lender, decreased by the amount of such Lender’s Ancillary Commitment (and increased to the extent such Ancillary Commitment is subsequently reduced, cancelled or terminated).
“Dollar Revolving Credit Exposure” means, with respect to any Lender at any time, the
aggregate Outstanding Amount at such time of all Dollar Revolving Loans of such Lender plus the aggregate amount at such time of such Lender’s Dollar LC Exposure.
“Dollar Revolving Facility” means, at any time, the aggregate amount of the Dollar Revolving
Lenders’ Dollar Revolving Credit Commitments at such time, which shall be funded in U.S. Dollars.
“Dollar Revolving Lender” means a Lender with a Dollar Revolving Credit Commitment or an
Additional Revolving Commitment or an outstanding Dollar Revolving Loan or Additional Revolving Loan.
“Dollar Revolving Loans” means the revolving Loans under the Dollar Revolving Facility made by
the Lenders to the Lead Borrower pursuant to Section 2.01(a)(ii), 2.22, 2.23 or 9.02(c)(ii).
“Dollar Revolving Credit Maturity Date” means the date that is five years after the Second
Amendment Effective Date.
“Domestic Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws
of the U.S., any state thereof or the District of Columbia.
“DQ List” has the meaning assigned to such term in Section 9.05(f)(iv).
“Dutch Auction” means an auction (an “Auction”)
conducted by any Affiliated Lender or any Debt Fund Affiliate (any such Person, the “Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance with the following
procedures; provided that no Auction Party shall initiate any Auction unless (I) at least five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant to an
Auction conducted hereunder; or (II) at least three Business Days have passed since the date of the last Failed Auction which was withdrawn pursuant to clause (c)(i) below:
(a) Notice Procedures. In
connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution to the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”).
Each Auction Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal amount of the Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of
$1,000,000 in excess thereof (or, in any case, such lesser amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the Auction Agent and the Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii) specify the discount to par (which may be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans subject to such
Auction), that represents the range of purchase prices that the Auction Party would be willing to accept in the Auction, (iii) be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each Lender with respect to any
Term Loan on an individual Class basis and (iv) remain outstanding through the Auction Response Date. The Auction Agent will promptly provide each appropriate Lender with a copy of the Auction Notice and a form of the Return Bid to be submitted by
a responding Lender to the Auction Agent (or its
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delegate) by no later than 5:00 p.m. on the date specified in the Auction Notice (or such later date as the Auction Party may agree with the reasonable
consent of the Auction Agent) (the “Auction Response Date”).
(b) Reply Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction
may, in its sole discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return Bid”) which shall be in a form reasonably acceptable to the Auction Agent,
and shall specify (i) a discount to par (that must be expressed as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”), which (when expressed as a percentage of the
par principal amount of such Term Loans) must be within the Discount Range, and (ii) a principal amount of such Term Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of such Lender then
outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply Amount”). Lenders may only submit one Return Bid per Auction, but each Return Bid may contain up to three bids only one
of which may result in a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction Agent, an Assignment and Assumption with the dollar amount of the Term Loans to be
assigned to be left in blank, which amount shall be completed by the Auction Agent in accordance with the final determination of such Lender’s Qualifying Bid pursuant to clause (c) below. Any Lender whose Return Bid is not received by the
Auction Agent by the Auction Response Date shall be deemed to have declined to participate in the relevant Auction with respect to all of its Term Loans.
(c) Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the Auction
Agent prior to the applicable Auction Response Date, the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable Price”) for the Auction, which will be the
lowest Reply Price for which the Auction Party can complete the Auction at the Auction Amount; provided that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a
purchase of the entire Auction Amount (any such Auction, a “Failed Auction”), the Auction Party shall either, at its election, (i) withdraw the Auction or (ii) complete the Auction at an Applicable Price equal
to the highest Reply Price. The Auction Party shall purchase the relevant Term Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than the Applicable Price (“Qualifying
Bids”) at the Applicable Price; provided that if the aggregate proceeds required to purchase all Term Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, the Auction
Party shall purchase such Term Loans at the Applicable Price ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Auction Agent in its discretion). If a Lender has submitted a Return Bid
containing multiple bids at different Reply Prices, only the bid with the lowest Reply Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying Bid of such Lender (e.g., a
Reply Price of $100 with a discount to par of 2%, when compared to an Applicable Price of $100 with a 1% discount to par, will not be deemed to be a Qualifying Bid, while, however, a Reply Price of $100 with a discount to par of 2.50% would be deemed
to be a Qualifying Bid). The Auction Agent shall promptly, and in any case within five Business Days following the Auction Response Date with respect to an Auction, notify (I) the Lead Borrower of the respective Lenders’ responses to such
solicitation, the effective date of the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount of the Term Loans and the tranches thereof to be purchased pursuant to such Auction, (II) each
participating Lender of the effective date of the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount and the tranches of Term Loans to be purchased at the Applicable Price on such date,
(III) each participating Lender of the aggregate principal amount and the tranches of the Term Loans of such Lender to be purchased at the Applicable Price on such date and (IV) if applicable, each participating Lender of any rounding and/or
proration pursuant to the second preceding sentence. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Lead Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error.
(d) Additional Procedures.
(i) Once initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed
Auction. Furthermore, in connection with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender will be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii) To the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be
consummated pursuant to procedures consistent with the provisions in this
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definition, established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Lead Borrower.
(iii) In connection with any Auction, the Lead Borrower and the Lenders acknowledge and agree that the Auction
Agent may require as a condition to any Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction Party and the Auction Agent.
(iv) Notwithstanding anything in any Loan Document to the contrary, for purposes of this definition, each notice or
other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or
communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(v) The Lead Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its
duties under this definition by itself or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The
exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided for in this definition as well as activities of the Auction
Agent.
“Eligible Assignee” means (a) any Lender, (b) any commercial bank, insurance company, or
finance company, financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate of any Lender, (d) any Approved Fund of any Lender or (e) to the extent
permitted under Section 9.05(g), any Affiliated Lender or any Debt Fund Affiliate; provided that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified
Institution or (iii) except as permitted under Section 9.05(g), the Lead Borrower or any of its Affiliates.
“Engagement Letter” means that certain Engagement Letter, dated as of June 1, 2015, by and
between the Lead Borrower, Deutsche Bank Securities Inc. and Credit Suisse Securities (USA) LLC.
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land
surface and subsurface strata & natural resources such as wetlands, flora and fauna.
“Environmental Claim” means any written notice, notice of violation, claim, action, suit,
proceeding, demand, abatement order or other order (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (b) in
connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection with any actual or alleged damage, injury, threat or harm to the Environment.
“Environmental Laws” means any and all foreign or domestic, federal or state (or any
subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other applicable requirements of Governmental Authorities and common law relating to (a) environmental matters, including
those relating to any Hazardous Materials Activity; or (b) the generation, use, storage, transportation or disposal of or exposure to Hazardous Materials, in any manner applicable to the Lead Borrower or any of its Restricted Subsidiaries or any
Facility.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental investigation or remediation, fines, penalties or indemnities), 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.
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“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control
within the meaning of Section 414(c) of the Code of which that Person is a member.
“ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the 30-day notice period has been waived); (b) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan,
or the filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code with respect to any Pension Plan or a failure to make a required contribution to a Multiemployer Plan; (c) the provision by the administrator of any
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by the Lead Borrower, any of its Restricted Subsidiaries or any of
its respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Lead Borrower, any of its Restricted Subsidiaries or any of its respective ERISA
Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan; (f) the imposition of liability on the Lead Borrower, any of its Restricted Subsidiaries or any of its respective
ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) of the Lead Borrower, any of its
Restricted Subsidiaries or any of its respective ERISA Affiliates from any Multiemployer Plan, or the receipt by the Lead Borrower, any of its Restricted Subsidiaries or any of its respective ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA or is in “endangered” or “critical” status, within the meaning of Section 432
of the Code or Section 305 of ERISA; (h) a failure by the Lead Borrower, any of its Restricted Subsidiaries or any of its respective ERISA Affiliates to pay when due (after expiration of any applicable grace period) any installment payment with
respect to withdrawal liability under Section 4201 of ERISA; (i) a determination that any Pension Plan is, or is reasonably expected to be, in “at-risk” status, within the meaning of Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA; or
(j) the incurrence of liability or the imposition of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
“EURIBOR Rate” means, with respect to any Borrowing in Euros for any Interest Period, (i) the
rate per annum equal to the rate determined by Administrative Agent to be the offered rate that appears on the appropriate page of the Reuters screen that displays the Global Rate Set Systems Limited rate for deposits in Euros (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period (or the successor thereto appointed by the European Money Markets Institute, if Global Rate Set Systems Limited is no longer making the applicable interest settlement
rate available), determined as of approximately 11:00 a.m. (Brussels time) on the applicable Interest Rate Determination Date; provided that if more than one rate is specified on such page, the rate will be
an arithmetic average of all such rates or, in the event such rate is not available, (ii) the rate for such Interest Period shall be the interest rate per annum reasonably determined by Administrative Agent in good faith to be the rate per annum at
which deposits in Euros for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted by Administrative Agent and with a term equivalent
to such Interest Period would be offered to Administrative Agent by major banks in the European interbank market for Euros at their request at approximately 11:00 a.m. (Brussels time) on the applicable interest rate determination date; provided that (x) EURIBOR shall not be less than 0% and (y) solely in the case of Term Loans, EURIBOR shall not be less than 0.75% per annum.
“Euro Term Commitment” means, with respect to each Euro Term Lender, the commitment, if any,
of such Lender to make a Euro Term Loan on the Closing Date, expressed as an amount representing the maximum principal amount of the Euro Term Loan to be made by such Lender, as such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.05. The initial amount of each Lender’s Euro Term Commitment is set forth on Schedule 1.01(a), or in the Assignment and
Assumption pursuant to which such Lender
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shall have assumed its Euro Term Commitment, as applicable. The initial aggregate amount of the Euro Term Lenders’ Euro Term Commitments is €300,000,000.
“Euro Term Lender” means each Lender that has a Euro Term Commitment or that extends Euro Term
Loans to the Lead Borrower.
“Euro Term Loan” has the meaning assigned to such term in Section 2.01(a)(i)(b).
“Euro Term Loan Facility” means the Euro term loan facility established pursuant to Section 2.01(a)(i)(b).
“Eurocurrency” means when used in reference to any Loan or Borrowing, shall refer to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the LIBO Rate, the EURIBOR Rate or the BA Rate, as applicable.
“European Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of May 29, 2012
on Insolvency Proceedings, as amended from time to time.
“Event of Default” has the meaning assigned to such term in Article 7.
“Excess Cash Flow” means, for any Test Period ending on the last day of any Fiscal Year, an
amount (if positive) equal to:
(a) the sum, without duplication, of the
amounts for such period of the following:
(i) Consolidated Adjusted EBITDA for such period (without giving effect to clause (e) of the definition thereof), plus
(ii) the Consolidated Working Capital Adjustment for such period, plus
(iii) Cash gains of the type excluded from the definition of “Net Income” to the extent not otherwise included in
calculating Consolidated Adjusted EBITDA (except to the extent such gains consist of proceeds applied pursuant to Section 2.11(b)(ii)), plus
(iv) to the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, Cash
payments received by Holdings or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause (b)(vii) below, minus
(b) the sum, without duplication, of the amounts for such period of the following:
(i) all permanent repayments of long term Indebtedness, including for purposes of clarity, the current portion of
any such Indebtedness (including (w) the principal component of payments in respect of Capital Leases, (x) payments under Section 2.09(b), Section 2.10(a) or (b) and Section 2.11(a) and (y) prepayments of Initial Term
Loans and Additional Term Loans to the extent (and only to the extent) made with the Net Proceeds of a Prepayment Asset Sale or Net Insurance/Condemnation Proceeds that resulted in an increase to Consolidated Net Income and not in excess of the
amount of such increase and (z) the amount of any voluntary prepayments of Loans made by Holdings, the Lead Borrower or any of their respective Subsidiaries pursuant to Section 9.05(g) (in an amount equal to the discounted amount actually paid in
respect of the principal amount of such Loans), but excluding (A) the amount of all deductions and reductions to the amount of mandatory prepayments pursuant to clause (B) of Section 2.11(b)(i), (B) all other repayments of the Initial
Term Loans or Additional Term Loans and (C) repayments of the Revolving Loans, any Additional Revolving Loans or loans under any revolving credit facility or arrangement, except to the extent a corresponding amount of the commitments under such
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revolving credit facility or arrangement are permanently reduced in connection with such repayments), in each case, to the extent not
financed with long-term Indebtedness (other than revolving Indebtedness), plus
(ii) without duplication of amounts deducted from Excess Cash Flow pursuant to this clause (ii) or clause (ix)
below in respect of a prior period, all Cash payments in respect of capital expenditures as would be reported in Holdings’ consolidated statement of cash flows made during such period and, at the option of the Lead Borrower, any Cash payments in
respect of any such capital expenditures made after such period and prior to the date of the applicable Excess Cash Flow payment (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness)), plus
(iii) Fixed Charges (other than clause (4) of the definition of “Fixed Charges”) added back pursuant to clause (b)
of the definition of “Consolidated Adjusted EBITDA” to the extent paid in Cash, plus
(iv) Taxes (including pursuant to any Tax sharing arrangement or any Tax distribution) paid and provisions for
Taxes, to the extent payable in Cash with respect to such period, plus
(v) without duplication of amounts deducted from Excess Cash Flow pursuant to this clause (v) or (ix) below
in respect of a prior period, Cash payments made during such period in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 or otherwise consented to by the Required Lenders (other than Investments in (x) Cash and
Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries), or, at the option of the Lead Borrower, any Cash payments in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 or otherwise
consented to by the Required Lenders (other than Investments in (x) Cash and Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries) made after such period and prior to the date of the applicable Excess Cash Flow payment
(except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness)), plus
(vi) the aggregate amount of all Restricted Payments made under Sections 6.04(a)(i), (ii), (iv),
(x) and (xii) or otherwise consented to by the Required Lenders, in each case to the extent actually paid in Cash during such period, or, at the option of the Lead Borrower, made after such period and prior to the date of the
applicable Excess Cash Flow payment (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness)), plus
(vii) amounts added back under clause (ix) of the definition of “Consolidated Net Income” to the extent
such amounts have not yet been received by the Lead Borrower or its Restricted Subsidiaries, plus
(viii) an amount equal to all expenses, charges and losses either (A) excluded in calculating Consolidated Net
Income or (B) added back in calculating Consolidated Adjusted EBITDA, in the case of clauses (A) and (B), to the extent paid in Cash, plus
(ix) without duplication of amounts deducted from Excess Cash Flow in respect of a prior period, at the option of
the Lead Borrower, the aggregate consideration required to be paid in Cash by the Lead Borrower or its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to
or during such period relating to capital expenditures, acquisitions or Investments permitted by Section 6.06 (other than Investments in (x) Cash and Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries) to be
consummated or made during the period of four consecutive Fiscal Quarters of the Lead Borrower following the end of such period (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness)); provided that to the extent the aggregate amount actually utilized to finance such capital expenditures, acquisitions or Investments during such subsequent period of four consecutive Fiscal Quarters is less than
the Contract Consideration,
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the amount of the resulting shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period of
four consecutive Fiscal Quarters, plus
(x) to the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding
the amount deducted) in calculating Consolidated Net Income, the aggregate amount of expenditures, fees, costs and expenses paid in Cash by the Lead Borrower and its Restricted Subsidiaries during such period, other than to the extent financed with
long-term Indebtedness (other than revolving Indebtedness), plus
(xi) Cash payments (other than in respect of Taxes, which are governed by clause (iv) above) made during
such period for any liability the accrual of which in a prior period did not increase Excess Cash Flow in such prior period (provided there was no other deduction to Consolidated Adjusted EBITDA or Excess
Cash Flow related to such payment), except to the extent financed with long-term Indebtedness (other than revolving Indebtedness), plus
(xii) Cash expenditures made in respect of any Hedge Agreement or other Derivative Transaction during such period
to the extent (A) not otherwise deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term Indebtedness (other than revolving Indebtedness), plus
(xiii) amounts paid in Cash (except to the extent financed with long-term Indebtedness (other than revolving
Indebtedness)) during such period on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA in a prior period and (B) reserves or amounts established in purchase accounting to
the extent such reserves or amounts are added back to, or not deducted from, Consolidated Net Income, plus
(xiv) without duplication of clause (b)(i) above, Cash payments made by Holdings or its Restricted Subsidiaries
during such period in respect of long-term liabilities, including for purposes of clarity, the current portion of any such liabilities (other than Indebtedness) of Holdings or its Restricted Subsidiaries, except to the extent such Cash payments were
(A) deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA for such period or (B) financed with long-term Indebtedness (other than revolving Indebtedness).
“Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations of the
SEC promulgated thereunder.
“Exchange Currency” has the meaning assigned to such term in the definition of “Exchange
Rate”.
“Exchange Rate” means on any day with respect to any currency (the “Initial Currency”), the rate at which such currency may be exchanged into another currency (the “Exchange Currency”), as set forth at approximately the close of business on the Business Day that
such conversion is to be made (or, if such conversion is to be made before close of business on such Business Day, then at approximately the close of business on the immediately preceding Business Day) on such day on the Reuters World Currency Page
for the Initial Currency; in the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Lead Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency
exchange operations in respect of the Initial Currency are then being conducted, at or about the close of business on the Business Day that such conversion is to be made (or, if such conversion is to be made before close of business on such Business
Day, then at approximately the close of business on the immediately preceding Business Day) for the purchase of the Exchange Currency for delivery two Business Days later; provided that if at the time of any
such determination, no such spot rate can reasonably be quoted, the Administrative Agent may use any reasonable method as it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error.
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“Excluded Assets” means each of the following:
(a) any contract, instrument, lease,
licenses, agreement, franchise, charter, authorization, or other document as to which the grant of a security interest would (i) constitute a violation of a restriction in favor of a third party (other than the Lead Borrower or any of its
Restricted Subsidiaries) or result in the abandonment, invalidation or unenforceability of any right of the relevant Loan Party, unless and until any required consents shall have been obtained, or (ii) result in a breach, termination (or a right of
termination) or default under such contract, instrument, lease, license, agreement, franchise, charter, authorization or other document (including pursuant to any “change of control” or similar provision); provided,
however, that any such asset will only constitute an Excluded Asset under clause (i) or clause (ii) above to the extent such violation or breach, termination (or right of termination) or
default would not be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law; provided,
further, that any such asset shall cease to constitute an Excluded Asset at such time as the condition causing such violation, breach, termination (or right of termination) or default or right to amend or
require other actions no longer exists and to the extent severable, the security interest granted under the applicable Collateral Document shall attach immediately to any portion of such contract, instrument, lease, license, agreement, franchise,
charter, authorization or document that does not result in any of the consequences specified in clauses (i) and (ii) above,
(b) the Capital Stock of any (i) Immaterial Subsidiary (except to the extent the security interest in such Capital Stock may be perfected by the filing of a Form UCC-1 (or similar)
financing statement), (ii) Unrestricted Subsidiary (except to the extent the security interest in such Capital Stock may be perfected by the filing of a Form UCC-1 (or similar) financing statement), and/or (iii) not-for-profit subsidiary,
(c) (i) any intent-to-use (or similar) Trademark application prior to the filing and acceptance of a “Statement of Use”, “Amendment to Allege Use” or similar filing with respect
thereto, only to the extent, if any, that, and solely during the period, in which, if any, the grant of a security interest therein may impair the validity or enforceability of such intent-to-use Trademark application under applicable law and
(ii) unless agreed to by the Lead Borrower and the Administrative Agent, any IP Rights registered in any foreign jurisdiction,
(d) any asset or property, the
grant or perfection of a security interest in which would (A) require any governmental or third party consent, approval, license or authorization that has not been obtained, (B) be prohibited by enforceable anti-assignment provisions of applicable
Requirements of Law, except, in the case of this clause (B), to the extent such prohibition would be rendered ineffective under the UCC or other applicable law notwithstanding such prohibition, or (C) be prohibited by enforceable
anti-assignment provisions of contracts governing such asset in existence on the Closing Date (or on the date of acquisition of the relevant asset (and in each case not entered into in anticipation of the Closing Date or such acquisition and except,
in each case, to the extent that term in such contract providing for such prohibition purports to prohibit the granting of a security interest over all assets of such Loan Party or any other Loan Party)) other than to the extent such prohibition
would be rendered in effective under the UCC or other applicable law,
(e) (i) any leasehold Real Estate Asset, (ii) any owned Real Estate Asset that is not a Material Real Estate Asset and (iii) any fixtures affixed to any Real Estate Asset to the extent a
security interest in such fixtures may not be perfected by a Form UCC-1 (or similar) financing statement in the jurisdiction of organization of the applicable Loan Party or the jurisdiction of location of such assets, as applicable,
(f) any interest in any partnership, joint venture or non-Wholly-Owned Subsidiary which cannot be pledged without (i) the consent of one or more third parties other than the Lead
Borrower or any of its Restricted Subsidiaries (after giving effect to Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law) or (ii) giving rise to a
“right of first refusal”, a “right of first offer” or a similar right that may be exercised by any third party,
(g) any Margin Stock,
(h) (i) the Capital Stock of any Foreign Subsidiary that is a CFC or of a CFC Holdco, other than 65% of the issued and outstanding voting Capital Stock and 100% of the issued and
outstanding non-voting Capital Stock of each such first-tier subsidiary, (ii) the Capital Stock of any Subsidiary of such first-tier subsidiary and (iii) the
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assets of any (x) Excluded Subsidiary or (y) Subsidiary substantially all of the assets of which consist of the Capital Stock of an Excluded Subsidiary,
(i) Commercial Tort Claims with a value (as reasonably estimated by the Lead Borrower) of less than $15,000,000,
(j) any Cash or Cash Equivalents comprised of (a) funds specially and exclusively used or
to be used for payroll and payroll taxes and other employee benefit payments to or for the benefit of any Loan Party’s employees, (b) funds used or to be used to pay all Taxes required to be collected, remitted or withheld (including, without
limitation, U.S. federal and state withholding Taxes (including the employer’s share thereof)) and (c) any other funds which any Loan Party holds as an escrow or fiduciary for the benefit of another Person,
(k) any accounts receivable and related assets (or interests therein) that are (i) sold to any Receivables Subsidiary or (ii) otherwise pledged, factored, transferred or sold in
connection with any Permitted Receivables Financing,
(l) (i) as-extracted collateral, (ii) timber to be cut, (iii) farm products, or (iv) manufactured homes, in the case of clauses (l)(iii) and (l)(iv), other than to the extent
constituting inventory,
(m) assets subject to liens securing permitted securitization financing (including receivables financings);
(n) any payroll accounts, tax accounts, accounts or funds held or received on behalf of third parties,
(o) any asset subject to a Lien of the type permitted by Section 6.02(m), 6.02(n), or 6.02(o), in each case if, to the extent and for so long as the grant of a Lien thereon or the
assignment thereof to secure any Secured Obligations is prohibited or requires the consent of any Person (other than any Loan Party) as a condition to the creation of any other security interest on such asset, and
(p) any asset with respect to which the Administrative Agent and the Lead Borrower have reasonably determined that the cost, burden, difficulty or consequence (including any effect on
the ability of the relevant Loan Party to conduct its operations and business in the ordinary course of business) of obtaining, perfecting or maintaining a pledge or security interest therein, or obtaining such title insurance, legal opinions or
other deliverables in respect of such assets, or providing such Guarantees outweighs the benefit of a security interest to the relevant Secured Parties afforded thereby.
“Excluded Debt Contribution” has the meaning assigned to such term in Section 6.01(r).
“Excluded Subsidiary” means:
(a) any Restricted Subsidiary that is not a
Wholly-Owned Subsidiary,
(b) any Immaterial Subsidiary,
(c) any Restricted Subsidiary that is prohibited by law, regulation or contractual obligation existing on the Closing Date or at the time such Restricted Subsidiary becomes a
subsidiary (which Contractual Obligation was not entered into in contemplation of such Restricted Subsidiary becoming a subsidiary) from providing a Loan Guaranty or that would require a governmental (including regulatory) consent, approval, license
or authorization to provide a Loan Guaranty,
(d) any not-for-profit subsidiary,
(e) any special purpose entity used for any Permitted Receivables Financing,
(f) any Foreign Subsidiary that is a CFC,
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(g) (i) any CFC Holdco and/or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any (x) Foreign Subsidiary that is a CFC or (y) CFC Holdco,
(h) any Unrestricted Subsidiary; and
(i) any other Restricted Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Lead Borrower, the burden or cost of providing a Loan Guaranty
outweighs the benefits afforded thereby.
“Excluded Swap Obligation” means, with respect to any Guarantor under the Loan Guaranty, any
Swap Obligation if, and to the extent that, all or a portion of the Loan Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Loan Guaranty thereof) is or becomes illegal under
the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to Section 3.20 of the Loan Guaranty and any other “keepwell,” support or other agreement for the benefit of such
Guarantor) at the time the Loan Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such
exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest is or becomes illegal.
“Excluded Taxes” means, (i) with respect to the Administrative Agent, any Lender, any
Ancillary Lender, any Issuing Bank, or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise Taxes (i) by the jurisdiction under
the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender or any Ancillary Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch
profits taxes imposed under Section 884(a) of the Code by the U.S. or any similar tax imposed by any other jurisdiction described in clause (a), (c) in the case of any Lender or any Ancillary Lender, any U.S. federal withholding tax that is
imposed on amounts payable to such Lender or such Ancillary Lender pursuant to a Requirement of Law in effect at the time such Lender becomes a party to this Agreement (or designates a new lending office) or such Ancillary Lender becomes an Ancillary
Lender, except (i) pursuant to an assignment or designation of a new lending office under Section 2.19 and (ii) to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending
office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section 2.17, (d) any tax imposed as a result of a failure by the Administrative Agent, any Lender, any Ancillary
Lender or any Issuing Bank to comply with Section 2.17(f) and (e) any U.S. withholding tax under FATCA.
“Existing ABL Credit Facility” means that certain Loan and Security Agreement dated as of
June 16, 2010, among Holdings, the Lead Borrower and certain of its subsidiaries, as borrowers, lenders thereto from time to time, and Bank of America, N.A., as administrative agent and collateral agent.
“Existing Letter of Credit” means any letter of credit previously issued that (a) will remain
outstanding on and after the Closing Date and (b) is listed on Schedule 1.01(b).
“Existing Term Loan Credit Agreement” has the meaning assigned to such term in Section 5.11.
“Existing Term Loan Lender” means a “Term Loan Lender” under, and as defined in, the Existing
Term Loan Credit Agreement.
“Extended Revolving Credit Commitment” has the meaning assigned to such term in Section 2.23(a)(i).
“Extended Revolving Loans” has the meaning assigned to such term in Section 2.23(a)(i).
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“Extended Term Loans” has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension” has the meaning assigned to such term in Section 2.23(a).
“Extension Offer” has the meaning assigned to such term in Section 2.23(a).
“Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or, except with respect to Articles 5 and 6, hereof owned, leased, operated or used by the Lead Borrower or any of its Restricted Subsidiaries.
“Failed Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any
amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the
Code (or any amended or successor version described above), and any treaty, law, regulation or other official guidance enacted in any other jurisdiction relating to any intergovernmental agreement between the U.S. and any other jurisdiction that
facilitates the implementation of such Sections of the Code.
“FCPA” has the meaning assigned to such term in Section 3.17(c).
“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by it; provided that,
if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fifth Amendment” means the Fifth Amendment to this Agreement, dated as of March 28, 2018, by
and among the Lead Borrower, the Administrative Agent and Royal Bank, as a Lender.
“Fifth Amendment Effective Date” has the meaning provided in the Fifth Amendment.
“First Amendment” shall mean the First Amendment to Credit Agreement, dated as of October 6,
2016, by and among the Lead Borrower, the Administrative Agent and the 2016 Replacement USD Term Loan Lenders.
“First Amendment Effective Date” has the meaning assigned to such term in the First Amendment.
“First Lien Leverage Ratio” means the ratio, as of any date of determination, of
(a) Consolidated First Lien Debt as of such date (net of (i) unrestricted Cash and Cash Equivalents and (ii) Cash and Cash Equivalents restricted in favor of the Credit Facilities (which may also include Cash and Cash Equivalents securing other
Indebtedness secured by a Lien on the Collateral)) to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “First Lien Leverage Ratio” is used in this Agreement, in each
case for the Lead Borrower and its Restricted Subsidiaries on a consolidated basis.
“First Lien/Second Lien Intercreditor Agreement” means an intercreditor agreement
substantially in the form of Exhibit O hereto, or such other customary form reasonably acceptable to the Administrative Agent and the Lead Borrower, as such document may be amended, restated, supplemented or otherwise modified from time to
time, and, in the case of any Borrower and/or Subsidiary Guarantor organized outside of the United States, such intercreditor agreement shall reflect then customary market terms for non-domestic Borrowers that are reasonably satisfactory to the Lead
Borrower and the Administrative Agent.
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“First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that, subject to any applicable Intercreditor Agreement such Lien is senior in priority to any other Lien to which such Collateral is subject, other than any Permitted Lien.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of the Lead Borrower ending September 30 of each calendar
year.
“Fixed Amounts” has the meaning assigned to such term in Section 1.11(c).
“Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Adjusted EBITDA of such Person for such period to the Fixed Charges of such Person for such period.
“Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:
(1) the consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-Cash interest payments, the interest component of any deferred payment obligations, the interest component of
all payments associated with Capital Leases, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made, received or accrued in connection
with Hedging Obligations (but excluding unrealized gains or losses with respect thereto), but excluding (i) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (ii) any expensing of bridge, commitment and
other financing fees, (iii) any redemption premiums, prepayment fees, or other charges or penalties incurred in connection with the Transactions or the Prior Transactions and (iv) any premiums, fees or other charges incurred in connection with the
refinancing of Indebtedness of the Lead Borrower on May 20, 2015, until such amounts are repaid in each case of (i) through (iv), to the extent included in any of the foregoing items listed in clause (1)); plus
(2) the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Restricted Subsidiaries, or secured by a Lien on assets
of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus
(4) the product of (a) all dividends, whether paid or accrued and
whether or not in Cash, on any series of Disqualified Capital Stock of such Person or any of its Restricted Subsidiaries, other than (i) dividends on Capital Stock payable solely in Capital Stock of the Lead Borrower (other than Disqualified Capital
Stock) or (ii) dividends to the Lead Borrower or a Restricted Subsidiary of the Lead Borrower, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory
tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP.
Notwithstanding the foregoing, any additional charges arising from (i) the application of Accounting Standards Codification
Topic 480-10-25-4 “Distinguishing Liabilities from Equity—Overall Recognition” to any series of preferred stock other than Disqualified Equity Interests or (ii) the application of Accounting Standards Codification Topic 470-20-25 “Debt—Debt with
Conversion Options—Recognition,” in each case, shall be disregarded in the calculation of Fixed Charges.
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“Flood Hazard Property” means any parcel of any Material Real Estate Asset subject to a
Mortgage located in the U.S. in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as
now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in
effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iv) Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any
successor statute thereto.
“Foreign Lender” means any Lender that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code.
“Foreign Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.
“Fourth Amendment” shall mean the Fourth Amendment to Credit Agreement, dated as of May 16,
2017, by and among the Lead Borrower, the Administrative Agent and the 2017 Incremental USD Term Loan Lenders.
“Fourth Amendment Arrangers” has the meaning assigned to such term in the Fourth Amendment.
“Fourth Amendment Effective Date” has the meaning assigned to such term in the Fourth
Amendment.
“Funding Account” has the meaning assigned to such term in Section 2.03(f).
“GAAP” means generally accepted accounting principles in the U.S. in effect and applicable to
the accounting period in respect of which reference to GAAP is made.
“German Borrower” has the meaning assigned to such term in the definition of “Revolving
Facility Borrowers”.
“Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any
government or any court, in each case whether associated with a state or locality of the U.S., the U.S., or a foreign government or any other political subdivision thereof (including any supra-national bodies such as the European Union or the
European Central Bank).
“Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.
“Granting Lender” has the meaning assigned to such term in Section 9.05(e).
“Gross Outstandings” means, in relation to a Multi-account Overdraft, the Ancillary
Outstandings of that Multi-account Overdraft but calculated on the basis that the words “net of any credit balance on any account of any Borrower under any Ancillary Facility with the relevant Ancillary Lender to the extent that such credit balance
is freely available to be set-off by such Ancillary Lender against liabilities owing by such Borrower under such Ancillary Facility” in clause (a) of the definition of “Ancillary Outstandings” were deleted.
“Guarantee” of or by any Person (the “Guarantor”)
means any obligation, contingent or otherwise, of the Guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary Obligor”)
in any manner and including any obligation of
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the Guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation or to
purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other monetary obligation of
the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other monetary obligation, (d) as an
account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other
monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary
obligation of any other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such
Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith.
“Guarantor” has the meaning assigned to such term in the definition of “Guarantee”.
“Hazardous Materials” means any chemical, material, substance or waste, or any constituent
thereof, which is prohibited, limited or regulated as “toxic”, “hazardous” or as a “pollutant” or “contaminant” or words of similar meaning or effect by any Environmental Law or any Governmental Authority.
“Hazardous Materials Activity” means any activity, event or occurrence involving any Hazardous
Material, including the use, manufacture, possession, storage, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of
any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge Agreement” means any agreement with respect to any Derivative Transaction between any
Loan Party or any Restricted Subsidiary and any other Person.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under
any Hedge Agreement.
“Holdings” means (a) SB/RH Holdings, LLC, a Delaware limited liability company and (b) any
successor to Holdings following a transaction permitted by Section 6.14(d).
“Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary of the Lead Borrower
(a) that does not have assets in excess of 2.5% of Consolidated Total Assets of the Lead Borrower and its Restricted Subsidiaries and (b) that does not contribute Consolidated Adjusted EBITDA in excess of 2.5% of the Consolidated Adjusted EBITDA of
the Lead Borrower and its Restricted Subsidiaries, in each case, as of the last day of the most recently ended Test Period; provided that the Consolidated Total Assets and Consolidated Adjusted EBITDA (as so
determined) of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of Consolidated Adjusted EBITDA, in each case, of the Lead Borrower and its Restricted Subsidiaries for the relevant Test Period; provided, further, that, at all times prior to the first delivery of financial statements pursuant to Section 5.01(a) or (b), this definition shall be
applied based on the pro forma consolidated financial statements of the Lead Borrower delivered pursuant to Section 4.01.
“Immediate Family Member” means, with respect to any individual, such individual’s child,
stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive
relationships), any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of
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which are any of the foregoing individuals, such individual’s estate (or an executor or administrator acting on its behalf), heirs or legatees or any
private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
“Incremental Cap” means:
(a) (i) $900,000,000 less (ii) the aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt incurred or issued in reliance on clause (a)(i) of this definition, plus
(b) in the case of any Incremental Facility that effectively extends the Maturity Date with respect to any Class of Loans and/or commitments hereunder, an amount equal to the portion of
the relevant Class of Loans or commitments that will be replaced by such Incremental Facility, plus
(c) in the case of any Incremental Facility that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 2.19, an amount equal to the relevant
terminated Revolving Credit Commitment, plus
(d) (A) the amount of any optional prepayment of any Loan including any Loan under any Incremental Facility or any Incremental Equivalent Debt (other than, in each case, incurred
pursuant to clause (e) below) in accordance with Section 2.11(a) (accompanied, to the extent such prepayments are of Revolving Loans, by a commitment reduction in the like amount under the applicable Revolving Facility) and/or the amount of
any permanent reduction of any Revolving Credit Commitment or Additional Revolving Commitment so long as, in the case of any optional prepayment, such prepayment was not funded (i) with the proceeds of any long-term Indebtedness (other than revolving
Indebtedness) or (ii) with the proceeds of any Incremental Facility incurred in reliance on clause (b) or clause (c) above less (B) the aggregate principal amount of all Incremental
Facilities and Incremental Equivalent Debt incurred or issued in reliance on clause (d)(A) of this definition, plus
(e) an unlimited amount so long as, in the case of this clause (e), if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Lien securing the Credit Facilities on the Closing Date, the First Lien Leverage Ratio would not exceed 3.25:1.00 (it being acknowledged that, solely to the extent that amounts incurred under clause (a) or
(d) and this clause (e) are incurred simultaneously, in calculating the amount that may be incurred under clause (e), the First Lien Leverage Ratio may exceed 3.25 to 1.00 as a result of the incurrence of the amount permitted to be incurred at such
time under clause (a) or (d)), calculated on a Pro Forma Basis, including the application of the proceeds thereof (without “netting” the Cash proceeds of the applicable Incremental Facility) (and determined on the basis of the financial statements
for the most recently ended Test Period which have been delivered pursuant to Section 5.01(a) or 5.01(b)), and, in the case of any Incremental Revolving Facility, assuming a full drawing under such Incremental Revolving Facility.
Any Incremental Facility shall be deemed to have been incurred in reliance on clause (d) above prior to any amounts under clause (a)
or (e) above. Any Incremental Facility shall be deemed to have been incurred in reliance on clause (e) above prior to any amounts under clause (a) above, unless the Lead Borrower specifies otherwise.
“Incremental Commitment” means any commitment made by a lender to provide all or any portion
of any Incremental Facility or Incremental Loans.
“Incremental Equivalent Debt” has the meaning assigned to such term in Section 6.01(z).
“Incremental Facilities” has the meaning assigned to such term in Section 2.22(a).
“Incremental Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental Revolving Commitment” means any commitment made by a lender to provide all or any
portion of any Incremental Revolving Facility.
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“Incremental Revolving Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental Revolving Facility Lender” means, with respect to any Incremental Revolving
Facility, each Revolving Lender providing any portion of such Incremental Revolving Facility.
“Incremental Revolving Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental Term Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental Term Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental Term Loan Borrowing Date” means, with respect to each Class of Incremental Term
Loans, each date on which Incremental Term Loans of such Class are incurred pursuant to Section 2.01(b) and as otherwise specified in any amendment providing for Incremental Term Loans in accordance with Section 2.22.
“Incurrence-Based Amounts” has the meaning assigned to such term in Section 1.11(c).
“Indebtedness” as applied to any Person means, without duplication, (a) all indebtedness for
borrowed money; (b) that portion of obligations with respect to Capital Leases to the extent recorded as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; (c) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; (d) any obligation owed for
all or any part of the deferred purchase price of property or services (excluding (i) any earn out obligation or purchase price adjustment until such obligation becomes a liability on the statement of financial position or balance sheet (excluding
the footnotes thereto) in accordance with GAAP, (ii) any such obligations incurred under ERISA, (iii) accrued expenses and trade accounts payable in the ordinary course of business (including on an inter-company basis); (iv) liabilities associated
with customer prepayments and deposits; (v) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligation of the applicable seller and (vi) any Indebtedness defeased by such
Person or by any subsidiary of such Person), which purchase price is (i) due more than six months from the date of incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument; (e) all Indebtedness of
others secured by any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness secured thereby shall have been assumed by such Person or is non-recourse to the credit of such Person; (f) the face amount of any
letter of credit issued for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness of another; (h) all obligations of such Person in respect of any
Disqualified Capital Stock and (i) all net obligations such Person would incur in the event of an early termination on the date Indebtedness of such Person is being determined in respect of any Derivative Transaction, including any Hedge Agreement,
whether or not entered into for hedging or speculative purposes; provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any calculation of any financial
ratio under this Agreement and (ii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the fair market value of the
property encumbered thereby as determined by such Person in good faith. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership) in which such Person is a general partner, except to the extent such
Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would otherwise be included in the calculation of Consolidated Total Debt; provided, further, that, notwithstanding anything herein to the contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, the effects of Accounting Standards Codification
Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such Indebtedness
and any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness hereunder. Notwithstanding the foregoing, Indebtedness of the Lead Borrower and its
Restricted Subsidiaries shall exclude (1) liabilities under vendor agreements to the extent such liabilities may be satisfied exclusively through non-Cash means such as purchase volume earning credits, (2) reserves for deferred taxes, (3) in the case
of the Lead Borrower or any Restricted Subsidiary, all intercompany Indebtedness having a term not exceeding 364 days (inclusive of roll over or extensions of term) and made in the ordinary course of business and, if owed by a Loan
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Party, expressly subordinated to the Secured Obligations and (4) intercompany liabilities in connection with the treasury and cash management (including
receivables and payables), tax and accounting operations of the Lead Borrower and its Restricted Subsidiaries in the ordinary course of business.
“Indemnified Taxes” means Taxes, other than Excluded Taxes or Other 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.
“Indemnitee” has the meaning assigned to such term in Section 9.03(b).
“Information Memorandum” means the lender presentation delivered to the Lenders prior to the
Closing Date relating to the Lead Borrower and its subsidiaries and the Transactions in connection with the initial syndication of the Initial Term Loans and the Initial Revolving Credit Commitments hereunder.
“Initial Revolving Credit Commitments” means the Revolving Credit Commitments made available
by the Revolving Lenders to the Lead Borrower on the Closing Date pursuant to Section 2.01(a)(ii).
“Initial Term Loan Commitment” means, with respect to each Term Lender, (i) such Lender’s USD
Term Commitment, CAD Term Commitment and/or Euro Term Commitment or (ii) an Additional Term Commitment.
“Initial Term Loan Maturity Date” means the date that is seven years after the Closing Date.
“Initial Term Loans” means (i) prior to the First Amendment Effective Date and the incurrences
of the 2016 Replacement USD Term Loans, the USD Term Loans, Euro Term Loans and CAD Term Loans made by the Term Lenders on the Closing Date to the Lead Borrower pursuant to Section 2.01(a), (ii) on or after the First Amendment Effective Date
and upon the making of the 2016 Replacement USD Term Loans pursuant to the First Amendment Effective Date but prior to the Third Amendment Effective date, (x) the Euro Term Loans and CAD Term Loans made by the Term Lenders to the Lead Borrower on the
Closing Date and (y) the 2016 Replacement USD Term Loans made on the First Amendment Effective Date pursuant to the First Amendment and Section 2.01 (including by way of the 2016 USD Term Loan Conversion), (iii) on or after the Third
Amendment Effective Date and upon the making of the 2017 Replacement USD Term Loans pursuant to the Third Amendment, (x) the Euro Term Loans and CAD Term Loans made by the Term Lenders to the Lead Borrower on the Closing Date and (y) the 2017
Replacement USD Term Loans made on the Third Amendment Effective Date pursuant to the Third Amendment and Section 2.01 (including by way of the 2017 USD Term Loan Conversion) and (iv) on or after the Fourth Amendment Effective Date and upon
the making of the 2017 Incremental USD Term Loans pursuant to the Fourth Amendment, (x) the Euro Term Loans and CAD Term Loans made by the Term Lenders to the Lead Borrower on the Closing Date and (y) the 2017 Replacement USD Term Loans (including
the 2017 Incremental USD Term Loans made on the Fourth Amendment Effective Date)
“Intercreditor Agreement” means any Pari First Lien Intercreditor Agreement, any Permitted
Pari Passu Intercreditor Agreement, any First Lien/Second Lien Intercreditor Agreement or any Permitted Junior Intercreditor Agreement.
“Interest Election Request” means a request by the Lead Borrower in the form of Exhibit D
or another form reasonably acceptable to the Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest Payment Date” means (a) with respect to any ABR Loan or Alternative Currency
Alternate Loan, the last Business Day of each March, June, September and December (commencing on September 30, 2015) and the Revolving Credit Maturity Date or the maturity date applicable to such Loan and (b) with respect to any LIBO Rate Loan, BA
Rate Loan or EURIBOR Rate Loan the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBO Rate Borrowing, BA Rate Borrowing or EURIBOR Rate Borrowing with an Interest Period of more than
three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing.
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“Interest Period” means with respect to any Eurocurrency Rate Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or (other than with respect to BA Rate Loans) six months (or, if agreed to by all relevant Lenders, twelve months or, if
agreed to by the Administrative Agent, a shorter period) thereafter, as the Lead Borrower may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Interest Rate Determination Date” means the date for calculating the interest rate for a
Eurocurrency Rate Loan for an Interest Period, which date shall be (i) in the case of any Eurocurrency Rate Loan in U.S. Dollars, the second Business Day prior to first day of the related Interest Period for such Loan or (ii) in the case of any
Eurocurrency Loan in an Alternative Currency, the date on which quotations would ordinarily be given by prime banks in the relevant interbank market for deposits in such Alternative Currency for value on the first day of the related Interest Period
for such Eurocurrency Rate Loan but in any event not earlier than the second Business Day prior to the first day of the related Interest Period; provided, however,
that if for any such Interest Period with respect to a Eurocurrency Rate Loan in an Alternative Currency other than Euros or Pounds Sterling, quotations would ordinarily be given on more than one date, the Interest Rate Determination Date shall be
the last of those dates.
“Investment” means (a) any purchase or other acquisition by the Lead Borrower or any of its
Restricted Subsidiaries of any of the Securities of any other Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory, materials, supplies and/or equipment in the
ordinary course of business) of all or a substantial portion of the business, property or fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance (other than any
advance to any current or former employee, officer, director, member of management, manager, consultant or independent contractor of the Lead Borrower, any Restricted Subsidiary or any Parent Company for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business) or capital contribution by the Lead Borrower or any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10, the amount of any Investment shall
be the original cost of such Investment, plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but
giving effect to any repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or sale but not
in excess of the amount of the relevant initial Investment). For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or
decreases in the value of such Investment but, other than in the case of Section 6.06(ee), giving effect to any returns or distributions of capital or repayment of principal actually received in Cash by such Person with respect thereto (but only to
the extent that the aggregate amount of all such returns, distributions and repayments with respect to such Investment does not exceed the principal amount of such Investment and less any such amounts which increase the Available Amount) and “Invested” shall have a corresponding meaning. Notwithstanding the foregoing, Investment shall not include (x) intercompany loans or advances in respect of intercompany current liabilities incurred in connection
with the treasury and cash management (including receivables and payables), tax and accounting operations of the Lead Borrower and its Restricted Subsidiaries in the ordinary course of business and (y) in the case of the Lead Borrower or any
Restricted Subsidiary, intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business and, if owed by a Loan Party, expressly subordinated to the Secured
Obligations.
“IP Rights” has the meaning assigned to such term in Section 3.05(c).
“IRS” means the U.S. Internal Revenue Service.
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“Issuing Bank” means, as the context may require, (a) DBNY, (b) CS, (c) JPM and (d) RBC in
respect of the Letters of Credit that will be issued from time to time in accordance with Section 2.05, (each such Issuing Bank specified in clauses (a) through (d), a “Primary Issuing Bank”), (e) BofA
in respect of the Existing Letters of Credit only and (f) any other Revolving Lender that, at the request of the Lead Borrower and with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), agrees to become an Issuing
Bank; provided that DBNY, CS and RBC will not be required to issue Commercial Letters of Credit. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by any
Affiliate of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“JPM” has the meaning assigned to such term in the preamble to this Agreement.
“Judgment Currency” has the meaning assigned to such term in Section 9.20.
“Junior Indebtedness” means any Subordinated Indebtedness (other than Indebtedness among
Holdings and/or its subsidiaries).
“Junior Lien Indebtedness” means any Indebtedness that is secured by a security interest on
the Collateral (other than Indebtedness among Holdings and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing the Credit Facilities.
“Latest Maturity Date” means, as of any date of determination, the latest maturity or
expiration date applicable to any Loan or commitment hereunder at such time, including the latest maturity or expiration date of any Initial Term Loan, Additional Term Loan, Revolving Loan, Additional Revolving Loan, Revolving Credit Commitment or
Additional Commitment.
“Latest Revolving Loan Maturity Date” means, as of any date of determination, the latest
maturity or expiration date applicable to any revolving loan or revolving credit commitment hereunder at such time, including the latest maturity or expiration date of any Revolving Loan, any Additional Revolving Loan, the Revolving Credit Commitment
or any Additional Revolving Commitment.
“Latest Term Loan Maturity Date” means, as of any date of determination, the latest maturity
or expiration date applicable to any term loan or term commitment hereunder at such time, including the latest maturity or expiration date of any Term Loan or any Additional Term Commitment.
“LC Collateral Account” has the meaning assigned to such term in Section 2.05(j).
“LC Disbursement” means, at any time, a Dollar LC Disbursement and/or a Multicurrency LC
Disbursement, as the context requires.
“LC Exposure” means, with respect to a Revolving Lender, such Lender’s Dollar LC Exposure
and/or Multicurrency LC Exposure, as the context requires.
“LC Obligations” means, at any time, the sum of the Dollar LC Obligations and the
Multicurrency LC Obligations.
“Lead Borrower” has the meaning assigned to such term in the preamble to this Agreement.
“Legal Reservations” means the application of relevant Debtor Relief Laws, general principles
of equity and/or principles of good faith and fair dealing.
“Lenders” means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender
with an Additional Commitment or an outstanding Additional Loan, any other Person that becomes a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption and, as the context requires, any Ancillary Lender.
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“Letter of Credit” means any Dollar Letter of Credit and/or any Multicurrency Letter of
Credit.
“Letter-of-Credit Right” has the meaning set forth in Article 9 of the UCC.
“LIBO Rate” means, the Published LIBO Rate, as adjusted to reflect applicable reserves
prescribed by governmental authorities.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of
way or other encumbrance on title to real property, and any Capital Lease having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that in no
event shall an operating lease in and of itself be deemed to constitute a Lien.
“Limited Condition Acquisition” means a Permitted Acquisition or any other Investment
permitted hereunder that constitutes an acquisition (other than intercompany Investments) by the Lead Borrower or one or more of the Restricted Subsidiaries, the consummation of which is not conditioned on the availability of, or on obtaining, third
party financing.
“Loan Documents” means this Agreement, the First Amendment, the Third Amendment, the Fourth
Amendment, any Borrowing Joinder Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, each Ancillary Document, any Intercreditor Agreement required to be entered into pursuant to the terms of this Agreement and any other
document or instrument designated by the Lead Borrower and the Administrative Agent as a “Loan Document”. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan Guaranty” means (a) the Guaranty Agreement, substantially in the form of Exhibit I,
executed by each Loan Party party thereto and the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any Person pursuant to Section 5.12 in substantially the form attached as Exhibit I
or another form that is otherwise reasonably satisfactory to the Administrative Agent and the Lead Borrower.
“Loan Installment Date” has the meaning assigned to such term in Section 2.10(a).
“Loan Parties” means Holdings, the Lead Borrower, each Subsidiary Guarantor, and, with respect
to any Ancillary Document, any applicable Affiliate Ancillary Borrower(s) and in each case their respective successors and permitted assigns.
“Loans” means any Initial Term Loan, any Additional Term Loan, any Revolving Loan or any
Additional Revolving Loan.
“Margin Stock” has the meaning assigned to such term in Regulation U.
“Material Adverse Effect” means a material adverse effect on (i) the business, assets,
financial condition or results of operations, in each case, of Holdings, the Lead Borrower and its Restricted Subsidiaries, taken as a whole, (ii) the rights and remedies (taken as a whole) of the Administrative Agent under the applicable Loan
Documents or (iii) the ability of the Loan Parties (taken as a whole) to perform their payment obligations under the applicable Loan Documents.
“Material Debt Instrument” means any physical instrument evidencing any Indebtedness for
borrowed money which is required to be pledged to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
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“Material Real Estate Asset” means any “fee-owned” Real Estate Asset acquired by any Loan
Party after the Closing Date having a fair market value (as reasonably determined by the Lead Borrower after taking into account any liabilities with respect thereto that impact such fair market value) in excess of $30,000,000.
“Maturity Date” means (a) with respect to the Revolving Facility, the Revolving Credit
Maturity Date, (b) with respect to the Initial Term Loans, the Initial Term Loan Maturity Date, (c) as to any Replacement Term Loans or Replacement Revolving Facility incurred pursuant to Section 9.02(c), the final maturity date for such
Replacement Term Loan or Replacement Revolving Facility, as the case may be, as set forth in the applicable Refinancing Amendment; (d) with respect to any Incremental Term Loans, the final maturity date set forth in the applicable documentation with
respect thereto; (e) with respect to any Incremental Revolving Facility, the final maturity date set forth in the applicable documentation with respect thereto and (f) with respect to any Extended Revolving Credit Commitment or Extended Term Loans,
the final maturity date set forth in the applicable Extension Offer accepted by the respective Lender or Lenders.
“Maximum Rate” has the meaning assigned to such term in Section 9.19.
“Minimum Extension Condition” has the meaning assigned to such term in Section 2.23(b).
“Moody’s” means Moody’s Investors Service, Inc.
“Mortgage Policies” has the meaning assigned to such term in the definition of “Collateral and
Guarantee Requirement”.
“Mortgages” means any mortgage, deed of trust or other agreement which conveys or evidences a
Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Multi-account Overdraft” means an Ancillary Facility which is an overdraft facility
comprising more than one account.
“Multicurrency LC Disbursement” means a payment or disbursement made by an Issuing Bank
pursuant to a Multicurrency Letter of Credit.
“Multicurrency LC Exposure” means, at any time, the sum of (a) (x) the aggregate and unexpired
undrawn amount of all outstanding Multicurrency Letters of Credit denominated in U.S. Dollars at such time plus (y) the Dollar Equivalent of the aggregate undrawn and unexpired amount of all outstanding
Multicurrency Letters of Credit denominated in Alternative Currencies at such time and (b) (x) the aggregate principal amount of all Multicurrency LC Disbursements denominated in U.S. Dollars that have not yet been reimbursed at such time plus (y) the Dollar Equivalent of the aggregate principal amount of all Multicurrency LC Disbursements denominated in Alternative Currencies that have not yet been reimbursed at such time. The Multicurrency LC
Exposure of any Revolving Lender at any time shall equal its Multicurrency Revolving Applicable Percentage of the aggregate Multicurrency LC Exposure at such time. For all purposes of this Agreement, (x) if on any date of determination a
Multicurrency 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 International Standby Practices (ISP98), such Multicurrency Letter of Credit shall be deemed to be
“outstanding” in the amount so remaining available to be drawn and (y) unless otherwise specified herein, the amount of a Multicurrency Letter of Credit at any time shall be deemed to be the stated amount of such Multicurrency Letter of Credit in
effect at such time (taking the Dollar Equivalent thereof in the case of any Multicurrency Letter of Credit denominated in an Alternate Currency); provided that with respect to any Multicurrency
Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Multicurrency Letter of Credit shall be deemed to be the maximum stated
amount of such Multicurrency Letter of Credit after giving effect to all such increases (taking the Dollar Equivalent thereof in the case of any Multicurrency Letter of Credit denominated in an Alternate Currency), whether or not such maximum stated
amount is in effect at such time.
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“Multicurrency LC Obligations” means, at any time, the sum of (a) (x) the amount available to
be drawn under Multicurrency Letters of Credit denominated in U.S. Dollars then outstanding plus (y) the Dollar Equivalent of the amount available to be drawn under Multicurrency Letters of Credit denominated in Alternative Currencies then
outstanding, in each case assuming compliance with all requirements for drawings referenced therein, plus (b) (x) the aggregate principal amount of all unreimbursed Multicurrency LC Disbursements denominated
in U.S. Dollars plus (y) the Dollar Equivalent of the aggregate principal amount of all unreimbursed Multicurrency LC Disbursements denominated in Alternative Currencies.
“Multicurrency Letter of Credit” means any Standby Letter of Credit or Commercial Letter of
Credit denominated in U.S. Dollars or an Alternative Currency issued pursuant to this Agreement under the Multicurrency Revolving Facility.
“Multicurrency Letter of Credit Sublimit” means the Dollar Equivalent of $30 million.
“Multicurrency Revolving Applicable Percentage” means, with respect to any Multicurrency
Revolving Lender for any Class, the percentage of the Total Multicurrency Revolving Credit Commitment for such Class represented by such Lender’s Multicurrency Revolving Credit Commitment for such Class; provided that
for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, any such Defaulting Lender’s Multicurrency Revolving Credit Commitment shall be disregarded in the relevant calculations. In the event the Multicurrency
Revolving Credit Commitments for any Class shall have expired or been terminated, the Multicurrency Revolving Applicable Percentages of any Multicurrency Revolving Lender of such Class shall be determined on the basis of the Multicurrency Revolving
Credit Exposure of the applicable Multicurrency Revolving Lenders of such Class, giving effect to any assignments and to any Multicurrency Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Multicurrency Revolving Credit Commitment” means, with respect to each Lender, the commitment
of such Lender to make Multicurrency Revolving Loans (and acquire participations in Multicurrency Letters of Credit) hereunder as set forth on the Commitment Schedule, or in the Assignment and Assumption pursuant to which such Lender assumed its
Multicurrency Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09, Section 2.11, Section 2.19 or Section 9.02(c), (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.05, (c) increased as part of an Incremental Revolving Facility or (d) other than for purposes of determining the Required Lenders or the Required Revolving Lenders, if
such Lender is an Ancillary Lender, decreased by the amount of such Lender’s Ancillary Commitment (and increased to the extent such Ancillary Commitment is subsequently reduced, cancelled or terminated).
“Multicurrency Revolving Credit Exposure” means, with respect to any Lender at any time,
(w) the aggregate Outstanding Amount at such time of all Multicurrency Revolving Loans of such Lender denominated in U.S. Dollars plus (x) the aggregate Outstanding Amount at such time of the Dollar
Equivalent of all Multicurrency Revolving Loans of such Lender denominated in Alternative Currencies, plus (y) the aggregate amount at such time of such Lender’s Multicurrency LC Exposure, plus (z) (i) the aggregate amount at such time of such Lender’s Ancillary Outstandings incurred pursuant to an Ancillary Facility denominated in U.S. Dollars and (ii) the Dollar Equivalent of the aggregate amount
at such time of such Lender’s Ancillary Outstandings incurred pursuant to an Ancillary Facility denominated in an Alternative Currency.
“Multicurrency Revolving Credit Maturity Date” means the date that is five years after the
Second Amendment Effective Date.
“Multicurrency Revolving Facility” means, at any time, the aggregate amount of the
Multicurrency Revolving Lenders’ Multicurrency Revolving Credit Commitments at such time, which may be funded (A) in U.S. dollars and (B) in alternative currencies including (x) Euros, Canadian Dollars and Pounds Sterling and (y) other LIBO
Rate-based and non-LIBO Rate-based currencies approved by the Administrative Agent and the Multicurrency Revolving Lenders that agree to make Multicurrency Revolving Loans in such currency in accordance with Section 1.08 (with the interest
rate calculations in respect of such currencies to be defined in a manner mutually satisfactory to the Lead Borrower and the Administrative Agent), in the case of (y) subject to currency sublimits to be agreed (collectively, the “Alternative Currencies”).
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“Multicurrency Revolving Lender” means a Lender with a Multicurrency Revolving Credit
Commitment or an Additional Revolving Commitment or an outstanding Multicurrency Revolving Loan or Additional Revolving Loan.
“Multicurrency Revolving Loans” means the revolving Loans made by the Lenders to the Lead
Borrower under the Multicurrency Revolving Facility pursuant to Section 2.01(a)(ii), 2.22, 2.23 or 9.02(c)(ii).
“Multicurrency Revolving Outstandings” means, in relation to any Multicurrency Revolving
Lender, the aggregate Dollar Equivalent of its participation in the Total Multicurrency Revolving Credit Outstandings (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender under the Multicurrency
Revolving Facility and, if it is also an Ancillary Lender, under any relevant Ancillary Facility).
“Multiemployer Plan” means any employee benefit plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA, that is subject to the provisions of Title IV of ERISA, and in respect of which the Lead Borrower or any of its Restricted Subsidiaries, or any of their respective ERISA Affiliates, makes or is obligated to make
contributions or with respect to which any of them has any ongoing obligation or liability, contingent or otherwise.
“Narrative Report” means, with respect to the financial statements with respect to which it is
delivered, a management discussion and narrative report describing the operations of the Lead Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the then-current Fiscal
Year to the end of the period to which the relevant financial statements relate.
“Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:
(1) any gain or loss,
together with any related provision for taxes on such gain or loss, realized in connection with: (a) any sale of assets outside the ordinary course of business of such Person; or (b) the disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary
gain or loss, together with any related provision for taxes on such extraordinary gain or loss.
“Net Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or
proceeds (including Cash Equivalents) received by the Lead Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder of any assets of the Lead Borrower or any of its Restricted
Subsidiaries or (ii) as a result of the taking of any assets of the Lead Borrower or any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, minus (b) (i) any actual out-of-pocket costs incurred by the Lead Borrower or any of its Restricted Subsidiaries in connection with the adjustment,
settlement or collection of any claims of the Lead Borrower or the relevant Restricted Subsidiary in respect thereof, (ii) payment of the outstanding principal amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness
(other than the Loans, and any Indebtedness secured by a Lien that is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured Obligations) that is secured by a Lien on
the assets in question and that is required to be repaid or otherwise comes due or would be in default under the terms thereof as a result of such loss, taking or sale, (iii) the reasonable out-of-pocket costs of putting any affected property in a
safe and secure position, (iv) any selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, transfer and similar Taxes and the Lead Borrower’s good faith estimate of income Taxes paid or payable) in
connection with any sale or taking of such assets as described in clause (a) of this definition and (v) any amounts provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation or purchase price
adjustments associated with any sale or taking of
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such assets as referred to in clause (a) of this definition (provided that to the extent and at the time
any such amounts are released from such reserve, such amounts shall constitute Net Insurance/Condemnation Proceeds).
“Net Outstandings” means, in relation to a Multi-account Overdraft, the Ancillary Outstandings
of that Multi-account Overdraft.
“Net Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset
Sale), the Cash proceeds (including Cash Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-Cash consideration initially received), net of (i) selling costs and out-of-pocket expenses (including reasonable
broker’s fees or commissions, legal fees, transfer and similar Taxes and the Lead Borrower’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or any Tax distributions) in connection with such
Disposition), (ii) amounts provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition (provided that
to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness (other than the Loans,
and any other Indebtedness secured by a Lien that is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured Obligations) which is secured by the asset sold in such
Disposition and which is required to be repaid or otherwise comes due or would be in default and is repaid (other than any such Indebtedness that is assumed by the purchaser of such asset) and (iv) Cash escrows (until released from escrow to the Lead
Borrower or any of its Restricted Subsidiaries) from the sale price for such Disposition; and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and customary fees,
commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith.
“New 2016 Replacement USD term Loan Lender” has the meaning assigned to such term in the First
Amendment.
“New 2017 Replacement USD Term Loan” has the meaning assigned to such term in the Third
Amendment.
“New 2017 Replacement USD Term Loan Lender” has the meaning assigned to such term in the Third
Amendment.
“New USD Term Loans” has the meaning assigned to such term in Section 2.01(a).
“Non-Debt Fund Affiliate” means any Permitted Investor (which is an Affiliate of the
Borrowers) and any Affiliate of any such Permitted Investor, other than any Debt Fund Affiliate.
“Non-U.S. Borrower” means any Borrower that is not incorporated or organized under the laws of
the U.S., any state thereof or the District of Columbia.
“Non-U.S. Facility” means (i) any Incremental Facility and/or (ii) any facility incurred
pursuant to a Refinancing, in each case to the extent incurred by a Non-U.S. Borrower.
“Non-U.S. Obligations” means the Obligations of a non-U.S. Borrower.
“Non-U.S. Sanctions Laws and Regulations” means any economic or financial sanctions or
requirements imposed by the United Nations, the European Union, the Federal Republic of Germany or the United Kingdom that apply to Holdings, the Borrowers or any of their respective Restricted Subsidiaries.
“Notice of Intent to Cure” has the meaning assigned to such term in Section 6.15(b).
“Notices of Grant of Security Interest in Intellectual Property” means the notices of grant
of security interest substantially in the form attached as Exhibit II to the Security Agreement or such other form as shall be reasonably acceptable to the Administrative Agent.
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“Obligations” means all unpaid principal of and accrued and unpaid interest (including
interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all LC Exposures or amounts or liabilities arising under or in
respect of any Ancillary Facility, all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities and obligations of the Loan Parties to the Lenders or to any Lender, Ancillary Lender, the
Administrative Agent, any Issuing Bank or any indemnified party arising under the Loan Documents in respect of any Loan, any Letter of Credit or any Ancillary Facility, whether direct or indirect (including those acquired by assumption), absolute,
contingent, due or to become due, now existing or hereafter arising.
“OFAC” has the meaning assigned to such term in Section 3.17(a).
“Organizational Documents” means (a) with respect to any corporation, its certificate or
articles of incorporation or organization and its by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with respect to any general partnership, its partnership agreement,
(d) with respect to any limited liability company, its articles of organization or certificate of formation, and its operating agreement, and (e) with respect to any other form of entity, such other organizational documents required by local law or
customary under such jurisdiction to document the formation and governance principles of such type of entity. In the event that any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified
by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Original Refinanced USD Term Loans” has the meaning assigned to such term in the First
Amendment.
“Original USD Term Loans” has the meaning assigned to such term in Section 2.01(a).
“Other Applicable Indebtedness” has the meaning assigned to such term in Section 2.11(b)(ii).
“Other Non-U.S. Revolving Borrowers” has the meaning assigned to such term in the definition
of “Revolving Facility Borrowers”.
“Other Connection Taxes” means, with respect to any Lender or Administrative Agent, Taxes
imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such recipient having executed, delivered, become a party to, performed its obligations
under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means any and all present or future stamp, court or documentary taxes or any
intangible, recording, filing or other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement, but not including, for
the avoidance of doubt, any Excluded Taxes.
“Outstanding Amount” means (a) with respect to Term Loans and Revolving Loans on any date, the
amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans and Revolving Loans (including any refinancings of (i) unreimbursed LC Disbursements and/or (ii) Ancillary
Outstandings as a Revolving Borrowing), as the case may be, occurring on such date, (b) with respect to any Letters of Credit, the aggregate amount available to be drawn under such Letters of Credit after giving effect to any changes in the aggregate
amount available to be drawn under such Letters of Credit or the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect to any LC Disbursements on any date, the amount of the aggregate
outstanding amount of such LC Disbursements on such date after giving effect to any disbursements with respect to any Letter of Credit occurring on such date and
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any other changes in the aggregate amount of the LC Disbursements as of such date, including as a result of any reimbursements by the Borrowers of
unreimbursed LC Disbursements.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in
U.S. Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative Agent or the applicable Issuing Bank, as the case may be, in accordance 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 DBNY in the applicable offshore interbank market for such currency to major banks in such interbank market.
“Parent Company” means (a) Holdings and (b) any other Person of which the Lead Borrower is an
indirect Wholly-Owned Subsidiary.
“Pari First Lien Intercreditor Agreement” means an intercreditor agreement substantially in
the form of Exhibit N hereto, or such other customary form reasonably acceptable to the Administrative Agent and the Lead Borrower, as such document may be amended, restated, supplemented or otherwise modified from time to time, and, in the
case of any Borrower and/or Subsidiary Guarantor organized outside of the United States, such intercreditor agreement shall reflect then customary market terms for non-domestic Borrowers that are reasonably satisfactory to the Lead Borrower and the
Administrative Agent.
“Participant” has the meaning assigned to such term in Section 9.05(c).
“Participant Register” has the meaning assigned to such term in Section 9.05(c).
“Party” means a party to this Agreement or, as applicable, any other Loan Document.
“Patent” means the following: (a) any and all patents and patent applications; (b) all
inventions described and claimed therein; (c) all reissues, divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with
respect thereto, including, without limitation, damages and payments for past and future infringements thereof; (e) all rights to sue for past, present, and future infringements thereof; and (f) all rights corresponding to any of the foregoing.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan”, as defined in Section 3(2) of ERISA
(other than a Multiemployer Plan), that is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Borrower or any of its Restricted Subsidiaries, or any of their respective ERISA Affiliates,
maintains or contributes to or has an obligation to contribute to, or otherwise has any liability, contingent or otherwise.
“Perfection Certificate” means a certificate substantially in the form of Exhibit E.
“Perfection Certificate Supplement” means a supplement to the Perfection Certificate
substantially in the form of Exhibit F.
“Perfection Requirements” means the filing of appropriate financing statements with the office
of the Secretary of State or other appropriate office of the state of organization of each Loan Party, the filing of appropriate assignments or notices with the U.S. Patent and Trademark Office and the U.S. Copyright Office, the proper recording or
filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting Collateral, in each case in favor of the Administrative Agent for the benefit of the Secured Parties and the delivery to the
Administrative Agent of any stock certificate or promissory note required to be delivered pursuant to the applicable Loan Documents, together with instruments of transfer executed in blank.
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“Permitted Acquisition” means any acquisition by the Lead Borrower or any of its Restricted
Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets of, or any business line, unit or division of, any Person or of a majority of the outstanding Capital Stock of any Person (but in any event including
any Investment in (x) any Restricted Subsidiary which serves to increase the Lead Borrower’s or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary or (y) any joint venture for the purpose of increasing the Lead
Borrower’s or its relevant Restricted Subsidiary’s ownership interest in such joint venture); provided that: (a) no Default or Event of Default exists or would result after giving pro forma effect to such
acquisition (or, solely in the case of a Limited Condition Acquisition, no Default or event of Default under Section 7.01(a), (f) or (g) exists or would result after giving pro forma effect to such acquisition); and (b) the
Total Leverage Ratio would not exceed 6.00:1.00 calculated on a Pro Forma Basis as of the most recently ended Test Period.
“Permitted Investors” means:
(a) HRG Group, Inc. (f/k/a Harbinger Group
Inc.);
(b) any Affiliate or Related Party HRG Group, Inc., other than another portfolio company thereof (which means a company actively engaged in providing goods and services to unaffiliated
customers) or a company controlled by a “portfolio company”; and
(c) any Person in respect of which both the Capital Stock of such Person and the aggregate ordinary voting power represented by the issued and outstanding Capital Stocks of such Person
of which (or in the case of a trust, the beneficial interests in which) are owned 50% or more by Persons specified in clauses (a) and (b) or any group in which Persons specified in clauses (a) and (b) own more than a majority of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stocks held by such group.
“Permitted Junior Intercreditor Agreement” means, with respect to any Liens on Collateral that
are intended to be junior to any Liens securing the Initial Term Loans and Initial Revolving Credit Commitments (and other Obligations that are pari passu with the Initial Term Loans and Initial Revolving
Credit Commitments), either (as the Lead Borrower shall elect) (x) any First Lien/Second Lien Intercreditor Agreement if such Liens secure “Second-Priority Obligations” (as defined therein), (y) another intercreditor agreement not materially less
favorable to the Lenders vis-à-vis such junior Liens than the First Lien/Second Lien Intercreditor Agreement (as determined by the Lead Borrower in good faith) or (z) another intercreditor agreement the terms
of which are consistent with market terms governing security arrangements for the sharing of liens on a junior basis at the time such intercreditor agreement is proposed to be established in light of the type of Indebtedness to be secured by such
liens, as determined by the Administrative Agent and the Lead Borrower in the exercise of their reasonable commercial judgment.
“Permitted Liens” means Liens permitted pursuant to Section 6.02.
“Permitted Pari Passu Intercreditor Agreement” means, with respect to any Liens on Collateral
that are intended to be pari passu with the Liens securing the Initial Term Loans and Initial Revolving Credit Commitments (and other Obligations that are pari passu with
the Initial Term Loans and Initial Revolving Credit Commitments), either (as the Lead Borrower shall elect) (x) the Pari First Lien Intercreditor Agreement, (y) another intercreditor agreement not materially less favorable to the Lenders vis-à-vis such pari passu Liens than any Pari First Lien Intercreditor Agreement (as determined by the Lead Borrower in good faith) or (z) another intercreditor
agreement the terms of which are consistent with market terms governing security arrangements for the sharing of liens on a pari passu basis at the time such intercreditor agreement is proposed to be
established in light of the type of Indebtedness to be secured by such liens, as determined by the Administrative Agent and the Lead Borrower in the exercise of their reasonable commercial judgment.
“Permitted Receivables Financing” means receivables securitizations or other receivables
financings (including any factoring, early pay and/or customer initiated supply chain financing program) that are non-recourse to the Lead Borrower and the Restricted Subsidiaries (except for (w) recourse to any Foreign Subsidiaries that own the
assets underlying such financing (or have sold such assets in connection with such financing), (x) any customary limited recourse or, to the extent applicable only to non-Loan Parties, that is
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customary in the relevant local market, (y) any performance undertaking or Guarantee, to the extent applicable only to non-Loan Parties, that is customary
in the relevant local market, and (z) an unsecured parent Guarantee by Holdings, the Lead Borrower or a Restricted Subsidiary that is a parent company of a Foreign Subsidiary of obligations of Foreign Subsidiaries, and, in each case, reasonable
extensions thereof); provided that, with respect to Permitted Receivables Financings incurred in the form of a factoring program, the outstanding amount of such Permitted Receivables Financing for the
purposes of this definition shall be deemed to be equal to the Permitted Receivables Net Investment for the last Test Period.
“Permitted Receivables Net Investment” means the aggregate Cash amount paid by the purchasers
under any Permitted Receivables Financing in the form of a factoring program in connection with their purchase of accounts receivable and customary related assets or interests therein, as the same may be reduced from time to time by collections with
respect to such accounts receivable and related assets or otherwise in accordance with the terms of such Permitted Receivables Financing (but excluding any such collections used to make payments of commissions, discounts, yield and other fees and
charges incurred in connection with any Permitted Receivables Financing in the form of a factoring program which are payable to any Person other than Holdings, a Borrower or a Restricted Subsidiary).
“Permitted Reorganization” has the meaning assigned to such term in Section 6.06(b).
“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or any other entity.
“Plan” means any “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA)
maintained by the Lead Borrower or any of its Restricted Subsidiaries or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any of its ERISA Affiliates, other than any Multiemployer Plan.
“Pounds Sterling” or “£” means the lawful currency of
the United Kingdom.
“Pre-Approved Borrower” has the meaning assigned to such term in the definition of “Revolving
Facility Borrowers”.
“Prepayment Asset Sale” means any Disposition by the Lead Borrower or its Restricted
Subsidiaries made pursuant to Section 6.07(h), Section 6.07(n), Section 6.07(q), clause (ii) to the proviso to Section 6.07(r) (to the extent provided therein) and Section 6.07(z).
“Primary Issuing Bank” has the meaning assigned to such term in the definition of “Issuing
Bank”.
“Primary Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
“Prime Rate” means (a) the rate of interest per annum determined by Royal Bank of Canada from
time to time as its prime commercial lending rate for United States Dollar loans in the United States for such day (such rate is not necessarily the lowest rate that Royal Bank of Canada is charging any corporate customer) or (b) if the
Administrative Agent has no “prime rate”, the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases
to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any
similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent).
“Prior Transaction Costs” means fees and expenses payable or otherwise borne by the Lead
Borrower and its Restricted Subsidiaries in connection with the Prior Transactions and incurred before the Closing Date, including the costs of legal and financial advisors to the Lead Borrower.
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“Prior Transactions” means, collectively, (a) the execution, delivery and performance by the
Lead Borrower and the other parties thereto of the new term loan commitment agreement no. 2 among Holdings, the Lead Borrower, the lenders party thereto and Deutsche Bank AG New York Branch, as agent, pursuant to which the Lead Borrower incurred term
loans in an aggregate principal amount equal to €150 million and the making of the borrowings thereunder on December 19, 2014, (b) the issuance of the Lead Borrower’s 6.125% Senior Notes due 2024, (c) the issuance of the Lead Borrower’s 5.750% Senior
Notes due 2025, (d) the issuance by Spectrum Brands Holdings, Inc. of its registered equity offering closed on May 20, 2015 and (e) the consummation of the acquisition of (i) Tell Manufacturing, Inc., (ii) Proctor and Gamble’s European pet food
business, (iii) Salix Animal Health, LLC and (iv) Armored AutoGroup Parent Inc.
“Pro Forma Basis” or “pro forma effect” means, as to
any calculation of any test, financial ratio or covenant, including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Fixed Charge Coverage Ratio, any other financial ratio, Consolidated Adjusted EBITDA or
Consolidated Total Assets (including component definitions thereof), in the event that the specified Person or any of its Subsidiaries incurs, assumes, guarantees, repays, retires, extinguishes, repurchases or redeems any Indebtedness or issues,
repurchases or redeems Disqualified Capital Stock subsequent to the commencement of the period for which any of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Fixed Charge Coverage Ratio, any other financial
ratio, Consolidated Adjusted EBITDA or Consolidated Total Assets is being calculated and on or prior to the date on which the event for which the relevant calculation is made (the “Calculation Date”), then the
Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Fixed Charge Coverage Ratio, any other financial ratio, Consolidated Adjusted EBITDA or Consolidated Total Assets, as applicable, shall be calculated giving pro
forma effect to such incurrence, assumption, guarantee, repayment, retirement, extinguishment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Capital Stock, and the use of the proceeds therefrom
as if the same had occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the
Fixed Charge Coverage Ratio, any other financial ratio, Consolidated Adjusted EBITDA or Consolidated Total Assets:
(a) Investments or acquisitions and dispositions of business entities or property and assets constituting a division or line of business of any Person that have
been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and
on or prior to the Calculation Date shall be given pro forma effect as if they had occurred on the first day of the four-quarter reference period and Consolidated Adjusted EBITDA for such reference period shall be calculated on a pro forma basis, but
without giving effect to clause (3) of the proviso set forth in the definition of Consolidated Net Income;
(b) the Consolidated Adjusted EBITDA attributable to discontinued operations, as determined in accordance with GAAP, shall be excluded;
(c) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Subsidiaries following the Calculation Date; and
(d) consolidated interest expense attributable to interest on any Indebtedness (whether existing or being incurred) computed on a pro forma basis and bearing a
floating interest rate shall be computed as if the rate in effect on the Calculation Date (taking into account any interest rate option, swap, cap or similar agreement applicable to such Indebtedness if such agreement has a remaining term in excess
of 12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had been the applicable rate for the entire period.
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Pro forma calculations made pursuant to the definition of the term “Pro Forma Basis” shall be determined in good faith by a Responsible
Officer of the Lead Borrower and, to the extent applicable, in compliance with Section 1.11. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Lead Borrower as set forth in
an Officer’s Certificate, to reflect operating expense reductions and other operating improvements or synergies reasonably expected to result from the applicable event.
In the case of any calculation for any event described above that occurs prior to the date on which financial statements have been (or
are required to be) delivered for the Fiscal Quarter ended June 30, 2015, any such calculation required to be made on a “Pro Forma Basis” shall use the financial statements delivered pursuant to Section 4.01(c)(ii) for the Fiscal Quarter
ended March 29, 2015.
Notwithstanding anything to the contrary set forth in this definition, for the avoidance of doubt, when calculating the First Lien
Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment Fee Rate” and for purposes of Section 6.15(a) (other than for the purpose of determining pro forma compliance with Section 6.15(a) as a condition to
taking any action under this Agreement), the events described in the immediately preceding paragraphs that occurred subsequent to the end of the applicable four-quarter reference period or Test Period, as applicable, shall not be given pro forma
effect.
“Projections” means the projections of the Lead Borrower and its subsidiaries included in the
Information Memorandum (or a supplement thereto).
“Promissory Note” means a promissory note of the Lead Borrower payable to any Lender or its
registered assigns, in substantially the form of Exhibit G, evidencing the aggregate outstanding principal amount of Loans of the Lead Borrower to such Lender resulting from the Loans made by such Lender.
“Public Company Costs” means, as to any Person, costs associated with, or in anticipation of,
or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act and the Exchange Act,
as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity, directors’, managers’ and/or employees’ compensation, fees and expense reimbursement, costs relating
to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees and other costs and/or expenses associated with
being a public company.
“Published LIBO Rate” means, with respect to any Interest Period when used in reference to any
Loan or Borrowing in U.S. Dollars or an Alternative Currency (other than Canadian Dollars or Euros), (a) the rate of interest (rounded upwards, if necessary, to the nearest 1/100th) equal to the rate determined by Administrative Agent to be the
offered rate that appears on the appropriate page of the Reuters screen that displays the ICE Benchmark Administration Limited rate for deposits in U.S. Dollars or the applicable Alternative Currency (other than Canadian Dollars or Euros) (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (or the successor thereto if ICE Benchmark Administration Limited is no longer making the applicable interest settlement rate available) (the “Published LIBO Screen Rate”) for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date; provided
that if the Published LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided, further,
that if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates) and (b) if such rate is not available at such time for any reason, then the “Published LIBO Screen Rate” for such Interest Period shall be
the interest rate per annum reasonably determined by the Administrative Agent in good faith to be the rate per annum at which deposits in U.S. Dollars or the applicable Alternative Currency for delivery on the first day of such Interest Period in
immediately available funds in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered to the Administrative Agent (or an
affiliate thereof) by major banks in the London or other offshore interbank market for U.S. Dollars or the applicable Alternative Currency at their request at approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date.
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“Qualified Capital Stock” of any Person means any Capital Stock of such Person that is not
Disqualified Capital Stock.
“Qualifying Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“RBC” means Royal Bank of Canada.
“Real Estate Asset” means, at any time of determination, all right, title and interest (fee,
leasehold or otherwise) of any Loan Party in and to real property (including, but not limited to, land, improvements and fixtures thereon).
“Receivables Subsidiary” means a wholly-owned Subsidiary of the Lead Borrower, which engages
in no activities other than in connection with Permitted Receivables Financings and which is designated (as provided below) as a “Receivables Subsidiary”, (a) with which neither the Lead Borrower nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding (other than pursuant to customary market terms in the documentation relating to the Permitted Receivables Financing (including with respect to fees payable in the ordinary course of business in connection with
the servicing of accounts receivable and related assets)) on terms less favorable to the Lead Borrower or such Subsidiary than those that might be obtained at the time from persons that are not Affiliates of the Lead Borrower (as determined by the
Company in good faith) and (b) to which neither the Lead Borrower nor any other Subsidiary of the Lead Borrower has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating
results. Any such designation shall be evidenced to the Administrative Agent by filing with the Administrative Agent an officer’s certificate of the Lead Borrower certifying that, to the best of such officer’s knowledge and belief after consultation
with counsel, such designation complied with the foregoing conditions.
“Refinancing” has the meaning assigned to such term in Section 4.01(f).
“Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably
satisfactory to the Administrative Agent and the Lead Borrower executed by (a) Holdings and the Lead Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Replacement Term Loans and/or the
Replaced Revolving Facility being incurred pursuant thereto and in accordance with Section 9.02(c).
“Refinancing Indebtedness” has the meaning assigned to such term in Section 6.01(p).
“Refunding Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Register” has the meaning assigned to such term in Section 9.05(b)(iv).
“Regular Cash Dividend” means a quarterly Cash dividend at the current rate of $0.33 per share
(which is the amount publicly declared and in effect as of the Closing Date) on the common Capital Stock of Super Holdco, commencing in the fiscal year beginning October 1, 2014.
“Regulation D” means Regulation D of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation H” means Regulation H of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation T” means Regulation T of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation U” means Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
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“Regulation X” means Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Related Funds” means with respect to any Lender that is an Approved Fund, any other Approved
Fund that is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and
the respective officers, directors, employees, agents, controlling persons and members of such Person and such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping or leaching of any Hazardous Material into the Environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material).
“Replaced Revolving Facility” has the meaning assigned to such term in Section 9.02(c).
“Replaced Term Loans” has the meaning assigned to such term in Section 9.02(c).
“Replacement Revolving Facility” has the meaning assigned to such term in Section 9.02(c).
“Replacement Term Loans” has the meaning assigned to such term in Section 9.02(c).
“Reply Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Reply Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Representative” has the meaning assigned to such term in Section 9.13.
“Repricing Transaction” means each of (a) the prepayment, repayment, refinancing, substitution
or replacement of all or a portion of the 2017 Replacement USD Term Loans substantially concurrently with the incurrence by any Loan Party of any secured term loans (including any Replacement Term Loans) having an effective interest cost or weighted
average yield (with the comparative determinations to be made by the Administrative Agent in a manner consistent with generally accepted financial practices, and in any event consistent with the second proviso to Section 2.22(a)(v)) that is
less than the effective interest cost or weighted average yield (as determined by the Administrative Agent on the same basis) applicable to the 2017 Replacement USD Term Loans so prepaid, repaid, refinanced, substituted or replaced and (b) any
amendment, waiver or other modification to this Agreement that would have the effect of reducing the effective interest cost of, or weighted average yield (to be determined by the Administrative Agent on the same basis as set forth in preceding clause (a))
of, the 2017 Replacement USD Term Loans; provided that the primary purpose (as reasonably determined by the Administrative Agent and the Lead Borrower) of such prepayment, repayment, refinancing,
substitution, replacement, amendment, waiver or other modification was to reduce the effective interest cost or weighted average yield of the 2017 Replacement USD Term Loans; provided, further, that in no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification in connection with a Change of Control or Transformational Event
constitute a Repricing Transaction. Any determination by the Administrative Agent contemplated by preceding clauses (a) and (b) shall be conclusive and binding on all Lenders, and the Administrative Agent shall have no liability to
any Person with respect to such determination absent bad faith, gross negligence or willful misconduct.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the
sum of the Dollar Equivalent of (a) Total Outstandings (with the Dollar Equivalent of each Lender’s risk participation and funded participation in LC Obligations being deemed “held” by such Lender for purposes of this definition), (b) aggregate
unused Term Commitments and (c) aggregate Unused Revolving Credit Commitments; provided that the unused Term Commitments of, Unused Revolving Credit Commitments of, and the portion of the
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Total Outstandings held or deemed held by any Defaulting Lender shall 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 Dollar Equivalent of (a) the Revolving Credit Commitments at such time and (b) after the termination of the Revolving Credit Commitments, the Total Revolving Credit Outstandings at such time; provided
that the Revolving Credit Commitments of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
“Requirements of Law” means, with respect to any Person, collectively, the common law and all
federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents
or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law and that are applicable to or
binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” of any Person means the chief executive officer, the president, the
chief financial officer, the treasurer, any assistant treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of such Person and any other individual or similar official thereof
responsible for the administration of the obligations of such Person in respect of this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other individual or similar official
thereof with substantially equivalent responsibilities of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of any 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.
“Responsible Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of a Responsible Officer of the Lead Borrower that such financial statements fairly present, in all material respects, in accordance with GAAP, the consolidated financial condition of the Lead
Borrower as at the dates indicated and its consolidated income and cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.
“Restricted Amount” has the meaning set forth in Section 2.11(b)(iv).
“Restricted Debt” has the meaning set forth in Section 6.04(b).
“Restricted Debt Payment” has the meaning set forth in Section 6.04(b).
“Restricted Payment” means (a) any dividend or other distribution on account of any shares of
any class of the Capital Stock of the Lead Borrower, except a dividend payable solely in shares of Qualified Capital Stock to the holders of such class; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition
for value of any shares of any class of the Capital Stock of the Lead Borrower and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of
the Lead Borrower now or hereafter outstanding.
“Restricted Subsidiary” means, as to any Person, any subsidiary of such Person that is not an
Unrestricted Subsidiary. Unless otherwise specified, “Restricted Subsidiary” means any Restricted Subsidiary of the Lead Borrower.
“Return Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
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“Revolving Credit Commitment” means, with respect to each Lender, such Lender’s Dollar
Revolving Credit Commitment, 2020 Dollar Revolving Credit Commitment and/or Multicurrency Revolving Credit Commitment.
“Revolving Credit Exposure” means, with respect to any Lender at any time, such Lender’s
Dollar Revolving Credit Exposure, 2020 Dollar Revolving Credit Exposure and/or Multicurrency Revolving Credit Exposure.
“Revolving Credit Maturity Date” means the date that is five years after the Second Amendment
Effective Date.
“Revolving Facility” means the Dollar Revolving Facility, the 2020 Dollar Revolving Facility
and the Multicurrency Revolving Facility.
“Revolving Facility Borrowers” means on the Closing Date, the Lead Borrower and after the
Closing Date, in addition to the Lead Borrower subject to execution and delivery of a Borrower Joinder Agreement and the delivery of customary corporate (and, if appropriate, shareholder) resolutions, officer certificates (and, if appropriate,
solvency certificates) and legal opinions addressed to the Administrative Agent and the other Secured Parties of counsel for the Loan Parties (or, if applicable, in the relevant jurisdictions, counsel for the Secured Parties) reasonably acceptable to
the Administrative Agent as to such matters as the Administrative Agent may reasonably request and such other instruments and documents as the Administrative Agent may reasonably request in connection with such Borrower Joinder Agreement,
(1) Spectrum Brands Europe GmbH, a limited liability company organized under the laws of Germany (the “German Borrower”), (2) Spectrum Brands Canada, Inc., a Canadian corporation (the “Canadian Borrower”), (3) subject to the Administrative Agent’s and the Revolving Lenders’ satisfactory receipt of documentation or other information as required by regulatory authorities under applicable “know your customer” rules and
regulations, a subsidiary of the Lead Borrower organized and domiciled in England (the “U.K. Borrower” and collectively with the German Borrower and the Canadian Borrower, the “Pre-Approved
Borrowers”) and (4) subject to the consent of the Administrative Agent, each Revolving Lender and each Issuing Bank that is requested to make available all or a part of the Revolving Credit Commitments thereto, and subject to the
Administrative Agent’s receipt of documentation or other information as required by regulatory authorities under applicable “know your customer” rules and regulations, one or more additional subsidiaries of the Lead Borrower organized in one or more
different jurisdictions to be determined and as designated by the Lead Borrower as a “Borrower” hereunder, in each case, after such additional Borrower has executed and delivered to the Administrative Agent a Borrower Joinder Agreement and the
delivery of customary corporate (and, if appropriate, shareholder) resolutions, officer certificates (and, if appropriate, solvency certificates) and legal opinions addressed to the Administrative Agent and the other Secured Parties of counsel for
the Loan Parties (or, if applicable, in the relevant jurisdictions, counsel for the Secured parties) reasonably acceptable to the Administrative Agent as to such matters as the Administrative Agent may reasonably request and such other instruments
and documents as the Administrative Agent may reasonably request in connection with such Borrower Joinder Agreement (collectively, “Other Non-U.S. Revolving Borrowers”).
“Revolving Lender” means a Lender with a Revolving Credit Commitment or an Additional
Revolving Commitment or, after the termination of all Revolving Credit Commitments and Additional Revolving Commitments, with an outstanding Revolving Loan or Additional Revolving Loan.
“Revolving Loans” means Dollar Revolving Loans, 2020 Dollar Revolving Loans and/or
Multicurrency Revolving Loans.
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill
Companies, Inc.
“Sanctions Laws and Regulations” means (i) any sanctions or requirements imposed by, or based
upon the obligations or authorities set forth in, the PATRIOT Act, the Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed.
Reg. 49079 (2001)), the U.S. International Emergency Economic Powers
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Act (50 U.S.C. §§ 1701 et seq.), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Syria Accountability and Lebanese Sovereignty
Act, the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012, all as amended, or any of the foreign assets control
regulations (including but not limited to 31 C.F.R., Subtitle B, Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of the Treasury Office of Foreign Assets Control, and any similar law,
regulation, or executive order enacted in the United States after the date of this Agreement, (ii) any Canadian Anti-Terrorism Laws and (iii) any Non-U.S. Sanctions Laws and Regulations.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding
to any or all of its functions.
“Second Amendment” means the Second Amendment to this Agreement, dated as of March 6, 2017, by
and among the Lead Borrower, the Administrative Agent and the lenders party thereto.
“Second Amendment Effective Date” has the meaning provided in the Second Amendment.
“Secured Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap
Obligations) under each Hedge Agreement that (a) is in effect on the Closing Date between any Loan Party and a counterparty that is the Administrative Agent, a Lender, an Arranger or any Affiliate of the Administrative Agent, a Lender or an Arranger
as of the Closing Date or (b) is entered into after the Closing Date between any Loan Party and any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger at the time such Hedge Agreement is entered into
unless the Lead Borrower or the applicable counterparty thereto informs the Administrative Agent in writing that such Hedge Agreement has been excluded from the Secured Hedging Obligations for purposes of the Loan Documents, it being understood that
each counterparty to any Secured Hedging Obligation shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and
Section 9.10 as if it were a Lender.
“Secured Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated
Secured Debt as of such date (net of (i) unrestricted Cash and Cash Equivalents and (ii) Cash and Cash Equivalents restricted in favor of the Credit Facilities (which may also include Cash and Cash Equivalents securing other Indebtedness secured by a
Lien on the Collateral)) to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage Ratio” is used in this Agreement, in each case for the Lead Borrower and
its Restricted Subsidiaries on a consolidated basis.
“Secured Obligations” means all Obligations, together with (a) all Banking Services
Obligations, (b) all Secured Hedging Obligations and (c) all Ancillary Obligations.
“Secured Parties” means (i) the Lenders, (ii) the Ancillary Lenders, (iii) the Administrative
Agent, (iv) the Collateral Agent, (v) each counterparty to a Hedge Agreement with a Loan Party the obligations under which constitute Secured Hedging Obligations, (vi) each provider of Banking Services to any Loan Party the obligations under which
constitute Banking Services Obligations, (vii) the Arrangers and (viii) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.
“Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing; provided that “Securities” shall not include any earn-out agreement or obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities Act” means the Securities Act of 1933 and the rules and regulations of the SEC
promulgated thereunder.
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“Security Agreement” means the Security Agreement, substantially in the form of Exhibit J,
among the Loan Parties and the Administrative Agent for the benefit of the Secured Parties.
“Seventh Amendment” means the Seventh Amendment to this Agreement, dated as of April 3, 2020, by and among the Lead Borrower, the Administrative
Agent, Royal Bank of Canada, as a Lender, and the Lenders party thereto.
“Seventh Amendment Effective Date” has the meaning provided in the Seventh Amendment.
“SPC” has the meaning assigned to such term in Section 9.05(e).
“specified transaction” has the meaning assigned to such term in Section 1.09(a).
“Standby Letter of Credit” means any Letter of Credit other than any Commercial Letter of
Credit.
“Stated Amount” means, with respect to any Letter of Credit, at any time, the maximum amount
available to be drawn thereunder, in each case determined (x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had in fact occurred at such time and (y) without regard to whether any
conditions to drawing could then be met but after giving effect to all previous drawings made thereunder.
“Subject Proceeds” has the meaning assigned to such term in Section 2.11(b)(ii).
“Subject Transactions” has the meaning ascribed to such term in the definition of “Pro Forma
Basis”.
“Subordinated Indebtedness” means any Indebtedness of the Lead Borrower or any of its
Restricted Subsidiaries that is expressly subordinated in right of payment to the Obligations.
“Subsidiary” or “Subsidiaries” or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of stock
or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or other Persons performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or a combination thereof; provided
that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless otherwise
specified, “subsidiary” means any subsidiary of the Lead Borrower.
“Subsidiary Guarantor” means (x) on the Closing Date, each subsidiary of the Lead Borrower
(other than any subsidiary that is an Excluded Subsidiary on the Closing Date) and (y) thereafter, each subsidiary of the Lead Borrower that guarantees the Secured Obligations pursuant to the terms of this Agreement, in each case, until such time as
the relevant subsidiary is released from its obligations under the Loan Guaranty in accordance with the terms and provisions hereof.
“Successor Borrower” has the meaning assigned to such term in Section 6.07(a).
“Super Holdco” means Spectrum Brands Holdings, Inc., a Delaware corporation.
“Swap Obligations” means, with respect to any Loan Party, 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.
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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) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euros.
“Taxes” means any and all present and future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority.
“Termination Date” has the meaning assigned to such term in the lead-in to Article 5.
“Term Borrower” means (A) on the Closing Date, the Lead Borrower and (b) after the Closing
Date, in addition to the Lead Borrower, subject to the consent of the Administrative Agent, and subject to the Administrative Agent’s and the applicable Term Lender’s satisfactory receipt of documentation or other information as required by
regulatory authorities under applicable “know your customer” rules and regulations, one or more additional subsidiaries of the Lead Borrower organized in one or more different jurisdictions to be determined and approved by the Administrative Agent
and as designated by the Lead Borrower as a “Term Borrower” hereunder, in each case, after such additional Term Borrower has executed and delivered to the Administrative Agent a Borrower Joinder Agreement and the delivery of customary corporate (and,
if appropriate, shareholder) resolutions, officer certificates (and, if appropriate, solvency certificates) and legal opinions addressed to the Administrative Agent and the other Secured Parties of counsel for the Loan Parties (or, if applicable, in
the relevant jurisdictions, counsel for the Secured Parties) reasonably acceptable to the Administrative Agent as to such matters as the Administrative Agent may reasonably request and such other instruments and documents as the Administrative Agent
may reasonably request in connection with such Borrower Joinder Agreement (collectively, the “Additional Term Borrowers”).
“Term Commitments” means the Initial Term Loan Commitments and/or any Additional Term
Commitments, as the context requires.
“Term Facility” means the Term Loans provided to or for the benefit of the Borrowers pursuant
to the terms of this Agreement.
“Term Lender” means a Lender with an Initial Term Loan Commitment (including any USD Term
Lender, Euro Term Lender and CAD Term Lender), or an Additional Term Commitment, or an outstanding Initial Term Loan or Additional Term Loan.
“Term Loan” means the Initial Term Loans and, if applicable, any Additional Term Loans.
“Test Period” means, as of any date, the period of four consecutive Fiscal Quarters then most
recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered); it being understood and agreed that prior to the first delivery of
financial statements of Section 5.01(a), “Test Period” means the period of four consecutive Fiscal Quarters in respect of which financial statements were delivered pursuant to Section 4.01(c).
“Third Amendment” shall mean the Third Amendment to Credit Agreement, dated as of April 7,
2017, by and among the Lead Borrower, the Administrative Agent, the Third Amendment Arranger and the 2017 Replacement USD Term Loan Lenders.
“Third Amendment Arranger” has the meaning assigned to such term in the Third Amendment.
“Third Amendment Effective Date” has the meaning assigned to such term in the Third Amendment.
“Threshold Amount” means $70,000,000.
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“Total 2020 Dollar Revolving Credit Commitment” means, at any time, the aggregate amount of the 2020 Dollar Revolving Credit Commitments, as in effect
at such time. The Total 2020 Dollar Revolving Credit Commitment as of the Seventh Amendment Effective Date is $90,000,000.
“Total Dollar Revolving Credit Commitment” means, at any time, the aggregate amount of the Dollar Revolving Credit
Commitments, as in effect at such time. The Total Dollar Revolving Credit Commitment as of the ClosingFifth Amendment Effective Date is $350 million.600,000,000.
“Total Multicurrency Revolving Credit Commitment” means, at any time, the aggregate amount of
the Multicurrency Revolving Credit Commitments, as in effect at such time. The Total Multicurrency Revolving Credit Commitment as of the Fifth Amendment Effective Date is $200,000,000.
“Total Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated
Total Debt outstanding as of such date (net of (i) unrestricted Cash and Cash Equivalents and (ii) Cash and Cash Equivalents restricted in favor of the Credit Facilities (which may also include Cash and Cash Equivalents securing other Indebtedness
secured by a Lien on the Collateral)) to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Total Leverage Ratio” is used in this Agreement in each case for the Lead
Borrower and its Restricted Subsidiaries.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all LC
Obligations, and all Ancillary Outstandings.
“Total Multicurrency Revolving Credit Outstandings” means the aggregate Outstanding Amount of
all Multicurrency Revolving Loans and Multicurrency LC Obligations, and all Ancillary Outstandings.
“Total Multicurrency Revolving Outstandings” means the aggregate of all Multicurrency
Revolving Outstandings.
“Total Revolving Credit Commitment” means the Total Dollar Revolving Credit Commitment and, the Total Multicurrency Revolving Credit Commitment and the Total 2020 Dollar Revolving Credit Commitment. The Total Revolving Credit Commitment as of the Fifth Seventh Amendment
Effective Date is $800,000,000890,000,000; provided that an amount, as set forth in the Borrower Joinder Agreement, up to $150,000,000177,000,000 of such $800,000,000 890,000,000
commitment and up to 30% of the commitments under any Incremental Revolving Facility entered into after the Closing Seventh Amendment Effective Date (to the extent that the Lenders under such Incremental Revolving Facility can provide such commitments) shall be available to the Pre-Approved Borrowers and/or
Other Non-U.S. Revolving Borrowers.
“Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Revolving
Loans and LC Obligations, and all Ancillary Outstandings.
“Trade Date” has the meaning assigned to such term in Section 9.05(f)(i)
“Trademark” means the following: (a) all trademarks (including service marks), common law
marks, trade names, trade dress, and logos, slogans and other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof and the goodwill of the business symbolized by the
foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims, and payments for past and future infringements
thereof; (d) all rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Transaction Costs” means fees, premiums, expenses and other transaction costs (including
original issue discount or upfront fees) payable or otherwise borne by the Lead Borrower and its subsidiaries in connection with the Transactions and the transactions contemplated thereby.
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“Transactions” means, collectively, (a) the execution, delivery and performance by the Loan
Parties of the Loan Documents to which they are a party and the Borrowing of Loans hereunder and (b) the payment of the Transaction Costs.
“Transformational Event” means any acquisition or investment by the Lead Borrower 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 Lead Borrower 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 Lead Borrower acting in good faith.
“Treasury Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Treasury Regulations” means the U.S. federal income tax regulations promulgated under the
Code.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate, the EURIBOR Rate, the Canadian Base Rate and the BA Rate.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New
York or any other state the laws of which are required to be applied in connection with the issue or perfection of security interests.
“U.K. Borrower” has the meaning assigned to such term in the definition of “Revolving Facility
Borrowers”.
“Unfunded Advances/Participations” means (a) with respect to the Administrative Agent, the
aggregate amount, if any (i) made available to the Lead Borrower on the assumption that each Lender has made available to the Administrative Agent such Lender’s share of the applicable Borrowing available to the Administrative Agent as contemplated
by Section 2.07(b) and/or Section 2.18(d) and (ii) with respect to which a corresponding amount shall not in fact have been returned to the Administrative Agent by the Lead Borrower or made available to the Administrative Agent by any
such Lender and (b) with respect to any Issuing Bank, the aggregate amount, if any, of LC Disbursements in respect of which a Revolving Lender shall have failed to make Revolving Loans to reimburse such Issuing Bank pursuant to Section 2.05(e).
“Unrestricted Subsidiary” means any subsidiary of the Lead Borrower designated by the Lead
Borrower as an Unrestricted Subsidiary on the Closing Date and listed on Schedule 5.10 or after the Closing Date pursuant to Section 5.10.
“Unused 2020 Dollar Revolving Credit Commitment” of any Lender, at any time, means the remainder of the 2020 Dollar Revolving Credit Commitment of
such Lender at such time, if any, less the aggregate Outstanding Amount of 2020 Dollar Revolving Loans made by such Lender.
“Unused Dollar Revolving Credit Commitment” of any Lender, at any time, means the
remainder of the Dollar Revolving Credit Commitment of such Lender at such time, if any, less the sum of (a) the aggregate Outstanding Amount of Dollar Revolving Loans made by such Lender and (b) such
Lender’s Dollar LC Exposure at such time.
“Unused Multicurrency Revolving Credit Commitment” of any Lender, at any time, means the
remainder of the Multicurrency Revolving Credit Commitment of such Lender at such time, if any, less the sum of (a) the aggregate Outstanding Amount of Multicurrency Revolving Loans made by such Lender,
(b) such Lender’s Multicurrency LC Exposure at such time and (c) the Dollar Equivalent of all Ancillary Commitments denominated in an Alternative Currency of such Lender (or its Affiliates) at such time.
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“Unused Revolving Credit Commitment” of any Lender, at any time, means the Unused Dollar
Revolving Credit Commitment, Unused 2020 Dollar Revolving Credit Commitment and/or Unused Multicurrency Revolving Credit Commitment.
“U.S.” means the United States of America.
“U.S. Credit Facilities” means the Credit Facilities incurred by the Lead Borrower or any
additional Borrower incorporated or organized under the laws of the U.S., any state thereof or the District of Columbia.
“U.S. Dollars” or “$” refers to lawful money of the
U.S.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f).
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“USD Term Commitment” means, with respect to (i) any USD Term Lender on the Closing Date, the
commitment, if any, of such Lender to make a USD Term Loan on the Closing Date, expressed as an amount representing the maximum principal amount of the USD Term Loan to be made by such Lender as set forth on Schedule 1.01(a), (ii) with
respect to the 2016 Replacement USD Term Loan Lenders on the First Amendment Effective Date, (x) with respect to each New 2016 Replacement USD Term Loan Lenders, the amount set forth opposite such Lender’s name on Schedule I to the First
Amendment under the caption “Amount of 2016 Replacement USD Term Commitments” and (y) with respect to each 2016 Converting Lender, such 2016 Converting Lender’s 2016 USD Term Loan Conversion Amount, in each case, as the same may be (a) reduced from
time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.05 and (iii) with respect to the 2017 Replacement USD Term Loan Lenders on the
Third Amendment Effective Date, (x) with respect to each New 2017 Replacement USD Term Loan Lenders, the amount set forth opposite such Lender’s name on Schedule I to the Third Amendment under the caption “Amount of 2017 Replacement USD Term
Commitments” and (y) with respect to each 2017 Converting Lender, such 2017 Converting Lender’s 2017 USD Term Loan Conversion Amount, in each case, as the same may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.05 and (iv) with respect to the 2017 Incremental USD Term Loan Lenders on the Fourth Amendment Effective Date, the amount set forth opposite such
Lender’s name on Schedule I to the Fourth Amendment under the caption “Amount of 2017 Incremental USD Term Loan Commitments”. The initial amount of each Lender’s USD Term Commitment is (i) set forth on Schedule 1.01(a) with respect to USD Term Loans
made on the Closing Date, (ii) set forth on Schedule I to the First Amendment with respect to the USD Term Loans made on the First Amendment Effective Date by the New 2016 Replacement USD Term Loans Lenders, (iii) the 2016 Replacement USD
Term Loan Conversion Amount of such Lender (in the case such Lender is a 2016 Converting Lender) with respect to the USD Term Loans made by such Lender by way of the 2016 USD Term Loan Conversion, (iv) set forth on Schedule I to the Third
Amendment with respect to the USD Term Loans made on the Third Amendment Effective Date by the New 2017 Replacement USD Term Loans Lenders, (v) the 2017 Replacement USD Term Loan Conversion Amount of such Lender (in the case such Lender is a 2017
Converting Lender) with respect to the USD Term Loans made by such Lender by way of the 2017 USD Term Loan Conversion, (vi) set forth on Schedule I to the Fourth Amendment with respect to the USD Term Loans made on the Fourth Amendment
Effective Date by the 2017 Incremental USD Term Loan Lenders, (vii) in the Assignment and Assumption pursuant to which such Lender shall have assumed its USD Term Commitment, or (viii) in the amendment or agreement relating to the respective
Incremental Commitment or commitments to make Replacement Term Loans pursuant to which such Lender shall have assumed its USD Term Commitment, as the case may be, as such amounts may be adjusted from time to time in accordance with this Agreement.
The aggregate amount of USD Term Commitments (w) on the Closing Date was $1,450,000,000, (x) on the First Amendment Effective Date is $1,005,518,866.25, (y) on the Third Amendment Effective Date is $1,000,427,631.49 and (z) on the Fourth Amendment
Effective Date is $1,250,427,631.49.
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“USD Term Lender” means each Lender that has a USD Term Commitment or that extends USD Term
Loans to the Lead Borrower.
“USD Term Loan” has the meaning assigned to such term in Section 2.01(a).
“USD Term Loan Facility” means the U.S. Dollar term loan facility established pursuant to
Section 2.01(a)(i)(a).
“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” of any Person means a subsidiary of such Person, 100% of the Capital
Stock of which (other than directors’ qualifying shares or shares required by law to be owned by a resident of the relevant jurisdiction) shall be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
Section 1.02 Classification of Loans and
Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term Loan”) or by Type (e.g., an “ABR Loan” or a
“Eurocurrency Rate Loan”) or by Class and Type (e.g., a “Eurocurrency Rate Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term
Borrowing”) or by Type (e.g., an “ABR Borrowing” or a “Eurocurrency Rate Borrowing”) or by Class and Type (e.g., an “ABR Rate Term Borrowing” or a “Eurocurrency Rate
Term Borrowing”).
Section 1.03 Terms Generally. The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein or in any Loan Document shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or
otherwise modified or extended, replaced or refinanced (subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements, supplements or modifications or extensions, replacements or refinancings set forth
herein), (b) any reference to any law in any Loan Document shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law, (c) any reference herein or in any Loan Document to any
Person shall be construed to include such Person’s successors and permitted assigns, (d) the words “herein,” “hereof” and “hereunder,” and words of similar import, when used in any Loan Document, shall be construed to refer to such Loan Document in
its entirety and not to any particular provision hereof, (e) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits and Schedules shall be construed to refer to Articles, Sections, clauses and paragraphs
of, and Exhibits and Schedules to, such Loan Document, (f) in the computation of periods of time in any Loan Document from a specified date to a later specified date, the word “from” means “from and including”, the words “to” and “until” mean “to
but excluding” and the word “through” means “to and including” and (g) the words “asset” and “property”, when used in any Loan Document, shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including Cash, securities, accounts and contract rights. For purposes of determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.05, 6.06, 6.07 and 6.09,
in the event that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition or Affiliate transaction, as applicable, meets the criteria of more than one of the categories of transactions or items permitted
pursuant to any clause of such Sections 6.01 (other than Sections 6.01(a), (c), (i), (q), (w) and (z)), 6.02 (other than Sections 6.02(a) and (t)), 6.04, 6.05,
6.06, 6.07 and 6.09, the Lead Borrower, in its sole discretion, may, from time to time, classify or reclassify such transaction or item (or portion thereof) and will only be required to include the amount and type of such
transaction (or portion thereof) in any one category. It is understood and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition and/or Affiliate transaction need not be
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permitted solely by reference to one category of permitted Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition and/or
Affiliate transaction under Sections 6.01, 6.02, 6.04, 6.05, 6.06, 6.07 or 6.09, respectively, but may instead be permitted in part under any combination thereof.
Section 1.04 Accounting Terms; GAAP.
(a) All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to time and, except as otherwise expressly
provided herein, all terms of an accounting or financial nature that are used in calculating the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Fixed Charge Coverage Ratio, Consolidated Adjusted EBITDA or
Consolidated Total Assets shall be construed and interpreted in accordance with GAAP, as in effect from time to time; provided that if the Lead Borrower notifies the Administrative Agent that the Lead
Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date of delivery of the financial statements described in Section 3.04(a) in GAAP or in the application thereof on the operation
of such provision (or if the Administrative Agent notifies the Lead Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance
herewith; provided, further, that if such an amendment is requested by the Lead Borrower or the Required Lenders, then the Lead Borrower and the Administrative Agent
shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the
application thereof; provided, further, that all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios
referred to herein shall be made without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification
or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Lead Borrower or any subsidiary at “fair value”, as defined therein and (ii) any treatment of Indebtedness in respect of
convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated
manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.
(b) Notwithstanding anything to the contrary herein, but subject to Section 1.11, all financial ratios and tests (including the Total Leverage Ratio, the First Lien Leverage
Ratio, the Secured Leverage Ratio, the Fixed Charge Coverage Ratio and the amount of Consolidated Total Assets and Consolidated Adjusted EBITDA) contained in this Agreement that are calculated with respect to any Test Period during which any Subject
Transaction occurs shall be calculated with respect to such Test Period and such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to the date of any required calculation of any
financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Lead Borrower or any of its Restricted Subsidiaries or any
joint venture since the beginning of such Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or test shall be calculated on a Pro Forma Basis for such Test Period as if such Subject Transaction had
occurred at the beginning of the applicable Test Period (it being understood, for the avoidance of doubt, that solely for purposes of (x) calculating quarterly compliance with Section 6.15 and (y) calculating the First Lien Leverage Ratio
and the Total Leverage Ratio for purposes of the definitions of “Applicable Rate” and/or “Commitment Fee Rate”, in each case, the date of the required calculation shall be the last day of the Test Period, and no Subject Transaction occurring
thereafter shall be taken into account).
(c) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capital Lease”, in the event of an accounting change requiring all leases
to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capital Leases in conformity with GAAP on the date hereof shall be considered Capital Leases, and all
calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith (provided that together with all financial statements delivered
to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Lead Borrower shall
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deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting
change).
Section 1.05 Effectuation of Transactions.
Each of the representations and warranties contained in this Agreement (and all corresponding definitions) is made after giving effect to the Transactions, unless the context otherwise requires.
Section 1.06 Timing of Payment of
Performance. When payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition of
“Interest Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
Section 1.07 Times of Day. Unless
otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).
Section 1.08 Additional Alternative
Currencies.
(a) The Lead Borrower may from time to time request that Revolving Loans constituting Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those
specifically listed in the definition of “Alternative Currencies”; provided that such requested currency is a lawful currency (other than U.S. Dollars) that is readily available and freely transferable and
convertible into U.S. Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall be subject to the approval of the Administrative Agent and each Lender that would be obligated to make Credit
Extensions denominated in such requested currency; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the Issuing Bank that has been
requested to issue such Letters of Credit.
(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 15 Business Days prior to the date of the desired Credit Extension (or such other time or date
as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Issuing Bank(s), in its or their sole discretion). In the case of any such request pertaining to Eurocurrency Rate
Loans, the Administrative Agent shall promptly notify each Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the applicable Issuing Bank(s). Each Lender (in the case
of any such request pertaining to Eurocurrency Rate Loans) or the applicable Issuing Bank(s) (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten Business Days after receipt
of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c) Any failure by a Lender or the applicable Issuing Bank(s), as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed
to be a refusal by such Lender or the applicable Issuing Bank(s), as the case may be, to permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Lenders that
would be obligated to make Credit Extensions denominated in such requested currency consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent shall so notify the Lead Borrower and such currency shall thereupon be
deemed for all purposes to be an Alternative Currency hereunder for purposes of any Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and the applicable Issuing Bank(s) consent to the issuance of Letters of Credit in such
requested currency, the Administrative Agent shall so notify the Lead Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative
Agent shall fail to obtain the requisite consent to any request for an additional currency under this Section 1.08, the Administrative Agent shall promptly so notify the Lead Borrower.
Section 1.09 Currency Generally.
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(a) For purposes of any determination under Article 5, Article 6 (other than Section 6.15(a) and the calculation of compliance with any financial ratio for
purposes of taking any action hereunder) or Article 7 with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition, affiliate transaction or other transaction, event or
circumstance, or any determination under any other provision of this Agreement, (any of the foregoing, a “specified transaction”), in a currency other than U.S. Dollars, (i) the U.S. Dollar equivalent amount of
a specified transaction in a currency other than U.S. Dollars shall be calculated based on the rate of exchange quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event such rate does
not appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Lead Borrower) for such foreign currency, as in effect at 11:00 a.m.
(London time) on the date of such specified transaction (which, in the case of any Restricted Payment, shall be deemed to be the date of the declaration thereof and, in the case of the incurrence of Indebtedness, shall be deemed to be on the date
first committed); provided that if any Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated in a currency other than U.S. Dollars, and
the relevant refinancing or replacement would cause the applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing or replacement, such
U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness (and, if applicable, associated Lien granted) does not exceed an amount sufficient to repay
the principal amount of such Indebtedness being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest and premiums (including tender premiums) thereon plus other reasonable and
customary fees and expenses (including upfront fees and original issue discount) incurred in connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under
Section 6.01 and (ii) for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred solely as a result of a change in the rate of currency exchange occurring after the time of any specified transaction so long as
such specified transaction was permitted at the time incurred, made, acquired, committed, entered or declared as set forth in clause (i). For purposes of Section 6.15(a) and the calculation of compliance with any financial ratio for
purposes of taking any action hereunder, on any relevant date of determination, amounts denominated in currencies other than U.S. Dollars shall be translated into U.S. Dollars at the applicable currency exchange rate used in preparing the financial
statements delivered pursuant to Section 5.01(a) or (b), as applicable, for the relevant Test Period and will, with respect to any Indebtedness, reflect the currency translation effects, determined in accordance with GAAP, of any
Hedge Agreement permitted hereunder in respect of currency exchange risks with respect to the applicable currency in effect on the date of determination for the U.S. Dollar equivalent amount of such Indebtedness.
(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify with the Lead Borrower’s
consent to appropriately reflect a change in currency of any country and any relevant market convention or practice relating to such change in currency.
Section 1.10 Cashless Rollovers.
Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then- existing
Loans with Incremental Loans, Replacement Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans or loans incurred under a new credit facility, in each case, to the extent such
extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that
such payment be made “in U.S. Dollars”, “in Alternative Currencies”, “in immediately available funds”, “in Cash” or any other similar requirement. Notwithstanding anything to the contrary set forth in this Agreement, any Lender may exchange,
continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement pursuant to a cashless settlement mechanism approved by the
Borrowers, the Administrative Agent and such Lender.
Section 1.11 Certain Calculations and
Tests.
(a) Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without
limitation, Section 6.15(a), any First Lien
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Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test, any Fixed Charge Coverage Ratio test) and/or the amount of
Consolidated Adjusted EBITDA or Consolidated Total Assets or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Restricted Payment and/or (B) the making of any
Restricted Debt Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Lead Borrower, (1) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for
the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (2) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial
statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after
giving effect to the relevant acquisition, Restricted Payment and/or Restricted Debt Payment on a Pro Forma Basis.
(b) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without
limitation, Section 6.15(a), any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Fixed Charge Coverage Ratio test and/or the amount of Consolidated Adjusted EBITDA or Consolidated
Total Assets), such financial ratio or test shall be calculated at the time such action is taken (subject to clause (a) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or
Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may
be.
(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement
that does not require compliance with a financial ratio or test (including, without limitation, Section 6.15(a), any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Fixed Charge
Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that
requires compliance with a financial ratio or test (including, without limitation, Section 6.15(a), any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Fixed Charge Coverage Ratio
test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the
Incurrence-Based Amounts.
Section 1.12 Rounding. Any financial
ratios required to be maintained by the Lead Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up for five).
Section 1.13 Available Amount Threshold.
If more than one action occurs on any given date the permissibility of the taking of which is determined hereunder by reference to the amount of the Available Amount immediately prior to the taking of such action, the permissibility of the taking
of each such action shall be determined independently.
ARTICLE 2
THE CREDITS
Section 2.01 Commitments.
(a) (i)(a)(1) Subject to the terms and conditions set forth herein, each USD Term Lender on the Closing Date severally, and not jointly, agreed to make term loans to the Lead Borrower
on the Closing Date in U.S. Dollars in a principal amount not to exceed (x) its USD Term Commitment on the Closing Date minus (y) the amount of term loans made to the Lead Borrower on the Closing Date in U.S. Dollars by certain Existing Term Loan
Lenders pursuant to the Cashless Settlement Letter (such term loans made by such USD Term Lender and such Existing Term Loan Lenders, the “Original USD Term Loans”), (2) on the First Amendment Effective Date,
(x)
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each New 2016 Replacement USD Term Loan Lender severally, and not jointly, agrees to make, on the terms and conditions set forth in the First Amendment
and in reliance upon the representations and warranties set forth in the First Amendment, New 2016 Replacement USD Term Loans on the First Amendment Effective Date to the Lead Borrower in an amount equal to the 2016 Replacement USD Term Commitment of
such New 2016 Replacement USD Term Loan Lender (and the Lead Borrower hereby agrees to apply the proceeds of such New 2016 Replacement USD Term Loans to refinance the Original Refinanced USD Term Loans in accordance with the First Amendment) and (y)
each 2016 Converting Lender agrees severally, and not jointly, that, pursuant to the 2016 USD Term Loan Conversion as set forth in the First Amendment, without any further action by any party to this Agreement, a portion of such 2016 Converting
Lender’s Original Refinanced USD Term Loans equal to such 2016 Converting Lender’s 2016 Replacement USD Term Loan Conversion Amount shall automatically be converted into 2016 Replacement USD Term Loans in a like principal amount in accordance with
the terms and conditions of the First Amendment (such term loans made on the First Amendment Effective Date by the New 2016 Replacement USD Term Loan Lenders and the 2016 Converting Lenders, the “New USD Term Loans”),
(3) on the Third Amendment Effective Date, (x) each New 2017 Replacement USD Term Loan Lender severally, and not jointly, agrees to make, on the terms and conditions set forth in the Third Amendment and in reliance upon the representations and
warranties set forth in the Third Amendment, New 2017 Replacement USD Term Loans on the Third Amendment Effective Date to the Lead Borrower in an amount equal to the 2017 Replacement USD Term Commitment of such New 2017 Replacement USD Term Loan
Lender (and the Lead Borrower hereby agrees to apply the proceeds of such New 2017 Replacement USD Term Loans to refinance the 2017 Refinanced USD Term Loans in accordance with the Third Amendment) and (y) each 2017 Converting Lender agrees
severally, and not jointly, that, pursuant to the 2017 USD Term Loan Conversion as set forth in the Third Amendment, without any further action by any party to this Agreement, a portion of such 2017 Converting Lender’s 2017 Refinanced USD Term Loans
equal to such 2017 Converting Lender’s 2017 Replacement USD Term Loan Conversion Amount shall automatically be converted into 2017 Replacement USD Term Loans in a like principal amount in accordance with the terms and conditions of the Third
Amendment (such term loans made on the Third Amendment Effective Date by the New 2017 Replacement USD Term Loan Lenders and the 2017 Converting Lenders, the “2017 New USD Term Loans”) and (4) on the Fourth
Amendment Effective Date, each 2017 Incremental USD Term Loan Lender severally, and not jointly, agrees to make, on the terms and conditions set forth in the Fourth Amendment and in reliance upon the representations and warranties set forth in the
Fourth Amendment, 2017 Incremental USD Term Loans on the Fourth Amendment Effective Date to the Lead Borrower in an amount equal to the 2017 Replacement USD Term Commitment of such New 2017 Replacement USD Term Loan Lender (such term loans made on
the Fourth Amendment Effective Date by the 2017 Incremental USD Term Loan Lenders and, the “2017 Incremental USD Term Loans” and, together with the Original USD Term Loans, the New USD Term Loans and the 2017
New USD Term Loans, the “USD Term Loans”), (b) subject to the terms and conditions set forth herein, each Euro Term Lender on the Closing Date severally, and not jointly, agreed to make term loans to the Lead
Borrower on the Closing Date in Euros in a principal amount not to exceed its Euro Term Commitment on the Closing Date (such term loans made by the Euro Term Lender, the “Euro Term Loans”), and (c) subject to
the terms and conditions set forth herein, each CAD Term Lender on the Closing Date severally, and not jointly, agreed to make term loans to the Lead Borrower on the Closing Date in Canadian Dollars in a principal amount not to exceed its CAD Term
Commitment on the Closing Date (the “CAD Term Loans”) and (ii) subject to the terms and conditions set forth herein, (x) each Dollar Revolving Lender severally, and not jointly, agrees to make Dollar Revolving
Loans denominated in U.S. Dollars to the Revolving Facility Borrowers in U.S. Dollars at any time and from time to time on and after the Closing Date, and until the earlier of the Dollar Revolving Credit Maturity Date and the termination of the
Dollar Revolving Credit Commitment of such Dollar Revolving Lender in accordance with the terms hereof; provided that after giving effect to any Borrowing of Dollar Revolving Loans, the Outstanding Amount of such Lender’s Dollar Revolving Credit
Exposure shall not exceed such Lender’s Dollar Revolving Credit Commitment and (y, (y) each 2020 Dollar Revolving Lender severally, and not jointly, agrees to make 2020 Dollar Revolving Loans denominated in U.S. Dollars to the Revolving Facility Borrowers in
U.S. Dollars at any time and from time to time on and after the Closing Date, and until the earlier of the 2020 Dollar Revolving Credit Maturity Date and the termination of the 2020 Dollar Revolving Credit Commitment of such 2020 Dollar Revolving
Lender in accordance with the terms hereof; provided that after giving effect to any Borrowing of 2020 Dollar Revolving Loans, the Outstanding Amount of such Lender’s 2020 Dollar Revolving Credit Exposure shall not exceed such Lender’s 2020
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Dollar Revolving Credit Commitment and (z) each Multicurrency Revolving Lender severally, and not jointly, agrees to make Multicurrency Revolving
Loans denominated in U.S. Dollars or Alternative Currencies to the Revolving Facility Borrowers in U.S. Dollars or Alternative Currencies at any time and from time to time on and after the Closing Date, and until the earlier of the Multicurrency
Revolving Credit Maturity Date and the termination of the Multicurrency Revolving Credit Commitment of such Multicurrency Revolving Lender in accordance with the terms hereof; provided that after giving effect to any Borrowing of Multicurrency
Revolving Loans, the Dollar Equivalent of the Outstanding Amount of such Lender’s Multicurrency Revolving Credit Exposure shall not exceed the Dollar Equivalent of such Lender’s Multicurrency Revolving Credit Commitment. Within the foregoing limits
and subject to the terms, conditions and limitations set forth herein, the Revolving Facility Borrowers may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of the Term Loans may not be reborrowed. Subject to the
terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available an Ancillary Facility to any Revolving Facility Borrower in place of all or part of its Multicurrency Revolving Credit Commitment.
(b) Subject to the terms and conditions of this Agreement, each Lender and each Additional Lender with an Additional Term Commitment for a given Class of Incremental Term Loans
severally, and not jointly, agrees to make Incremental Term Loans to the Lead Borrower or any Additional Term Borrower, which Incremental Term Loans shall not exceed for any such Lender or Additional Lender at the time of any incurrence thereof, the
Additional Term Commitment of such Lender or Additional Lender for such Class on the respective Incremental Term Loan Borrowing Date. Notwithstanding the foregoing, if the applicable Additional Term Commitment in respect of any Incremental Term Loan
Borrowing Date is not drawn on such Incremental Term Loan Borrowing Date, the undrawn amount shall automatically be cancelled. Amounts repaid or prepaid in respect of such Incremental Term Loans may not be reborrowed.
(c) Subject to the
terms and conditions of this Agreement, each Lender and each Additional Lender with an Additional Revolving Commitment for a given Class of Incremental Revolving Loans severally, and not jointly, agrees to make Incremental Revolving Loans to any
Revolving Facility Borrower at any time and from time to time on and after the initial incurrence thereof, and until the earlier of the maturity thereof and the termination of the Additional Revolving Commitment of such in accordance with the terms
hereof; provided that after giving effect to any Borrowing of Incremental Revolving Loans, the Outstanding Amount of such Lender’s Revolving Credit Exposure in respect of Additional Revolving Loans shall not
exceed such Lender’s Additional Revolving Commitment in respect of Additional Revolving Loans.
Section 2.02 Loans and Borrowings.
(a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the
applicable Class.
(b) Subject to Section 2.01 and Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Rate Loans as the Lead Borrower may request in
accordance herewith or in the case of Revolver Loans in Alternative Currencies (to the extent not provided for herein, with interest rate calculations in respect of such Alternative Currencies provided for in a manner mutually satisfactory to the
Lead Borrower and the Administrative Agent). Each Lender at its option may make any Eurocurrency Rate Loan or Canadian Base Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Lead Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) such Eurocurrency Rate Loan or Canadian Base Rate Loan shall
be deemed to have been made and held by such Lender, and the obligation of the Lead Borrower to repay such Eurocurrency Rate Loan and Canadian Base Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or
Affiliate of such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the Lead Borrower resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from
taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of such request for costs for which compensation is
provided under this Agreement, the provisions of Section 2.15 shall apply); provided, further that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled to any greater
indemnification under Section 2.17 with respect to such Eurocurrency Rate Loan or Canadian Base Rate Loan, as applicable than that to which the applicable Lender was entitled on the date on which such Loan was made (except in connection with
any indemnification entitlement arising as a result of a Change in Law after the date on which such Loan was made).
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(c) At the commencement of each Interest Period for any Borrowing of Revolving Loans, such Borrowing shall comprise an aggregate principal amount that is an integral multiple of the
Dollar Equivalent of $100,000 and not less than Dollar Equivalent of $1,000,000; provided that an ABR Revolving Borrowing may be made in a lesser aggregate amount that is (x) equal to the entire aggregate
Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of 10 different Interest Periods in effect for Eurocurrency Rate Borrowings at any time outstanding (or such greater number of different Interest
Periods as the Administrative Agent may agree from time to time).
(d) Notwithstanding any other provision of this Agreement, the Borrowers shall not, nor shall it be entitled to, request, or to elect to convert or continue, any Borrowing if the
Interest Period requested with respect thereto would end after the Maturity Date applicable to such Loans or, in the case of an election to convert or continue any Borrowing, would not be in the same currency.
Section 2.03 Requests for Borrowings.
Each Term Borrowing, each Revolving Borrowing, each conversion of Term Loans or Revolving Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon irrevocable notice by the applicable Borrower to the
Administrative Agent. Each such notice must be in writing or by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”))
(w) in the case of a Borrowing denominated in U.S. Dollars, (1) not later than 12:00 p.m. New York City time three Business Days prior to the requested day of any Borrowing, conversion or continuation of Eurocurrency Rate Loans(or one Business Day
in the case of any Borrowing of Eurocurrency Rate Loans to be made on the Closing Date) or (2) not later than 11:00 a.m. New York City time on the requested date of any Borrowing of ABR Loans (or, in each case, such later time as shall be
acceptable to the Administrative Agent), (x) in the case of a Borrowing denominated in Canadian Dollars, (1) not later than 12:00 p.m. New York City time three Business Days prior to the requested day of any Borrowing, conversion or continuation of
Eurocurrency Rate Loans (or one Business Day in the case of any Borrowing of Eurocurrency Rate Loans to be made on the Closing Date) or (2) not later than 10:00 a.m. New York City time one Business Day prior to the requested day of any Borrowing of
ABR Loans (or, in each case, such later time as shall be acceptable to the Administrative Agent and the Multicurrency Revolving Lenders), (y) in the case of a Borrowing denominated in Euros or Pounds Sterling, not later than 11 a.m. London time,
three Business Days prior to the requested day of any Borrowing, conversion or continuation of Eurocurrency Rate Loans (or one Business Day in the case of any Borrowing of such Eurocurrency Rate Loans to be made on the Closing Date) and (z) in the
case of a Borrowing denominated in an Alternative Currency other than Euros or Pounds Sterling, not later than the Applicable Time (or one Business Day in the case of any Borrowing of such Eurocurrency Rate Loans to be made on the Closing Date); provided, however, that if the applicable Borrower wishes to request Eurocurrency Rate Loans having an Interest Period of other than one, two, three or six months in duration as provided in the definition of
“Interest Period,” (A) the applicable notice from the applicable Borrower must be received by the Administrative Agent (x) with respect to Loans denominated in U.S. Dollars or Canadian Dollars, not later than 12:00 p.m. New York City time, five
Business Days prior to the requested date of such Borrowing, conversion or continuation, (y) with respect to Loans denominated in Euros or Pounds Sterling, not later than 11 a.m. London time, five Business Days prior to the requested date of such
Borrowing, conversion or continuation and (z) with respect to Loans denominated in an Alternative Currency other than Euros or Pounds Sterling, not later than the Applicable Time, whereupon the Administrative Agent shall give prompt notice to the
appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to them and (B) (x) with respect to Loans denominated in U.S. Dollars or Canadian Dollars, not later than 10:00 a.m. New York City time four
Business Days before the requested date of such Borrowing, (y) with respect to Loans denominated in Euros or Pounds Sterling, not later than 10:00 a.m. London time four Business Days before the requested date of such Borrowing conversion or
continuation and (z) with respect to with respect to Loans denominated in an Alternative Currency other than Euros or Pounds Sterling, not later than the Applicable Time, the Administrative Agent shall notify the applicable Borrower whether or not
the requested Interest Period has been consented by all the appropriate Lenders. Each written notice (or confirmation of telephonic notice) with respect to a Borrowing by the applicable Borrower pursuant to this Section 2.03 shall be
delivered to the Administrative Agent in the form of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
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(a) the Class and currency of such Borrowing;
(b) the aggregate amount of the requested Borrowing;
(c) the date of such Borrowing, which shall be a Business Day;
(d) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Rate Borrowing;
(e) in the case of a Eurocurrency Rate Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest
Period”; and
(f) the location and number of the applicable Borrower’s account or any other designated account(s) to which funds are to be disbursed (the “Funding
Account”).
If no election as to the Type of Borrowing is specified with respect to Term Loans denominated in U.S. Dollars or Canadian Dollars, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Rate Borrowing, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration. If no
election regarding the currency of such Borrowing is specified with respect to any Multicurrency Revolving Loan, then the Loans so required shall be made in U.S. Dollars. The Administrative Agent shall advise each Lender of the details thereof and
of the amount of the Loan to be made as part of the requested Borrowing (x) in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request in accordance with this Section 2.03 or (y) in the case of any
Eurocurrency Rate Borrowing, no later than one Business Day following receipt of a Borrowing Request in accordance with this Section 2.03.
Section 2.04 [Reserved].
Section 2.05 Letters of Credit.
(a) General.
(i) Dollar
Letters of Credit. Subject to the terms and conditions set forth herein, (i) each Issuing Bank agrees, in each case in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.05, (A) from time to time on
any Business Day during the period from the Closing Date to the fifth Business Day prior to the Revolving Credit Maturity Date, upon the request of the Lead Borrower, to issue Dollar Letters of Credit issued only for the account of the Lead Borrower
(or any Restricted Subsidiary; provided that to the extent that any such Restricted Subsidiary is not a Loan Party, such Letter of Credit shall be deemed an Investment in such Restricted Subsidiary and shall
only be issued so long as it is permitted under Section 6.06) (provided that any Commercial Letter of Credit under the Dollar Revolving Facility shall only be issued by JPM (or a successor thereto
appointed pursuant to clause (i) of this Section 2.05 and which agrees to issue such Commercial Letters of Credit) and shall not exceed at any time an amount equal to (x) $10,000,000 minus (y)
the aggregate amount of any outstanding Commercial Letters of Credit issued under the Multicurrency Revolving Facility; provided, further, that the Lead Borrower
will be the applicant) and to amend or renew Dollar Letters of Credit previously issued by it, in accordance with Section 2.05(b), and (B) to honor drafts under the Dollar Letters of Credit, and (ii) the Dollar Revolving Lenders severally
agree to participate in the Dollar Letters of Credit issued pursuant to Section 2.05(d). On and after the Closing Date, each Existing Letter of Credit shall be deemed to be a Dollar Letter of Credit issued hereunder on the Closing Date for
all purposes under this Agreement and the other Loan Documents, subject to the last sentence of Section 2.05(b). Dollar Letters of Credit will be issued on a serial basis by each Primary Issuing Bank, in each case, at the direction of the
Administrative Agent, with (i) such issuance to result in the Primary Issuing Banks sharing (to the extent reasonably practicable) ratably in the aggregate exposure with respect to Letters of Credit and (ii) the Dollar Letter of Credit exposure of
each Primary Issuing Bank to be subject to an individual sub-limit, which shall be $17,500,000 for
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DBNY, $17,500,000 for CS, $17,500,000 for JPM and $17,500,000 for RBC or in such other amounts from time to time as otherwise mutually
agreed to by each such Primary Issuing Bank and the Lead Borrower.
(ii) Multicurrency
Letters of Credit. Subject to the terms and conditions set forth herein, (i) each Issuing Bank agrees, in each case in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.05, (A) from time to time on
any Business Day during the period from the Closing Date to the fifth Business Day prior to the Revolving Credit Maturity Date, upon the request of the Lead Borrower, to issue Multicurrency Letters of Credit issued only for the account of the Lead
Borrower (or any Restricted Subsidiary; provided that to the extent that any such Restricted Subsidiary is not a Loan Party, such Letter of Credit shall be deemed an Investment in such Restricted Subsidiary
and shall only be issued so long as it is permitted under Section 6.06) (provided that any Commercial Letter of Credit under the Multicurrency Revolving Facility shall only be issued by JPM (or a
successor thereto appointed pursuant to clause (i) of this Section 2.05 and which agrees to issue such Commercial Letters of Credit) and shall not exceed at any time an amount equal to (x) $10,000,000 minus (y) the aggregate amount of any outstanding Commercial Letters of Credit issued under the Dollar Revolving Facility ; provided, further, that
the Lead Borrower will be the applicant) and to amend or renew Multicurrency Letters of Credit previously issued by it, in accordance with Section 2.05(b), and (B) to honor drafts under the Multicurrency Letters of Credit, and (ii) the
Multicurrency Revolving Lenders severally agree to participate in the Multicurrency Letters of Credit issued pursuant to Section 2.05(d). Multicurrency Letters of Credit will be issued on a serial basis by each Primary Issuing Bank, in each
case, at the direction of the Administrative Agent, with (i) such issuance to result in the Primary Issuing Banks sharing (to the extent reasonably practicable) ratably in the aggregate exposure with respect to Multicurrency Letters of Credit and
(ii) the Multicurrency Letter of Credit exposure of each Primary Issuing Bank to be subject to an individual sub-limit, the Dollar Equivalent of which shall be $7,500,000 for DBNY, $7,500,000 for CS, $7,500,000 for JPM and $7,500,000 for RBC or in
such other amounts from time to time as otherwise mutually agreed to by each such Primary Issuing Bank and the Lead Borrower.
(iii) The Lead
Borrower shall identify in the request for the issuance of a Letter of Credit under which of the Multicurrency Revolving Facility or the Dollar Revolving Facility such Letter of Credit shall be issued; provided that
Letters of Credit denominated in a currency other than U.S. Dollars may only be requested to be issued under the Multicurrency Revolving Facility (and, for the avoidance of doubt, Letters of Credit in U.S. Dollars may be issued under either the
Dollar Revolving Facility or the Multicurrency Revolving Facility).
(iv) No Issuing Bank
shall be under any obligation to issue any Letter of Credit if:
(A) any order,
judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon
such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it;
(B) the issuance of
such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;
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(C) except as
otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than the Dollar Equivalent of $100,000;
(D) except as
otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is to be denominated in a currency other than U.S. Dollars or an Alternative Currency; or
(E) such Issuing
Bank does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, the Lead Borrower shall deliver to the applicable
Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested date of issuance (or such shorter period as is acceptable to the applicable Issuing Bank), a request to issue a Letter of Credit, which shall specify
that it is being issued under this Agreement, in the form of Exhibit K attached hereto. To request an amendment, extension or renewal of an outstanding Letter of Credit, (other than any automatic extension of a Letter of Credit permitted
under Section 2.05(c)) the Lead Borrower shall submit such a request to the applicable Issuing Bank (with a copy to the Administrative Agent) at least three Business Days in advance of the requested date of amendment, extension or renewal (or
such shorter period as is acceptable to the applicable Issuing Bank), identifying the Letter of Credit to be amended, extended or renewed, and specifying the proposed date (which shall be a Business Day) and other details of the amendment, extension
or renewal. Requests for the issuance, amendment, extension or renewal of any Letter of Credit must be accompanied by such other information (including information as required by regulatory authorities under applicable “know your customer” rules and
regulations) as shall be necessary to issue, amend, extend or renew such Letter of Credit. If requested by the applicable Issuing Bank, the Lead Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in
connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the
Lead Borrower to, or entered into by the Lead Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Letter of Credit, letter of credit application or other document
entered into by the Lead Borrower with the applicable Issuing Bank relating to any Letter of Credit shall contain any representations or warranties, covenants or events of default not set forth in this Agreement (and to the extent inconsistent
herewith shall be rendered null and void), and all representations and warranties, covenants and events of default set forth therein shall contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those
set forth in this Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards, qualifications, thresholds and exceptions set forth herein without action by any Person). A Dollar Letter
of Credit may be issued, amended, extended or renewed only if (and on the issuance, amendment, extension or renewal of each Letter of Credit the Lead Borrower shall be deemed to represent and warrant that), after giving effect to such issuance,
amendment, extension, or renewal, (i) the Dollar LC Exposure does not exceed the Dollar Letter of Credit Sublimit, (ii) the sum of (x) the aggregate outstanding principal amount of all Dollar Revolving Loans made under the Dollar Revolving Facility plus (y) the aggregate amount of all Dollar LC Obligations under the Dollar Revolving Facility would not exceed the Total Dollar Revolving Credit Commitment and (iii) the sum of (x) the aggregate outstanding
principal amount of all Dollar Revolving Loans of any Dollar Revolving Lender made under the Dollar Revolving Facility plus (y) the Dollar Revolving Applicable Percentage of the Dollar LC Obligations of any Dollar Revolving Lender under the Dollar
Revolving Facility would not exceed such Dollar Revolving Lender’s Dollar Revolving Credit Commitments. A Multicurrency Letter of Credit may be issued, amended, extended or renewed only if (and on the issuance, amendment, extension or renewal of
each Letter of Credit the Lead Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, extension, or renewal, (i) the Multicurrency LC Exposure does not exceed the Multicurrency Letter of Credit
Sublimit, (ii) the sum of (x) the Dollar Equivalent of the aggregate outstanding principal amount of all Multicurrency Revolving Loans plus (y) the aggregate amount of all Multicurrency LC Obligations would
not exceed the Total Multicurrency Revolving Credit Commitment and (iii) the sum of (x) the Dollar Equivalent of the aggregate outstanding principal amount of all Multicurrency Revolving Loans of any Multicurrency Revolving Lender made under the
Multicurrency Revolving Facility plus (y) the Multicurrency Revolving Applicable Percentage of the Multicurrency LC Obligations of any Multicurrency Revolving Lender under the Multicurrency Revolving Facility would not exceed such Multicurrency
Revolving Lender’s Multicurrency Revolving Credit
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Commitments. Promptly after the delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the applicable Issuing Bank will also deliver to the Lead Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. Notwithstanding anything to the contrary contained herein, there
shall be no extensions or renewals of the Existing Letters of Credit, which shall expire in accordance with the terms thereof as in effect on the Closing Date.
(c) Expiration Date. (i) No Standby Letter of Credit shall expire later than the earlier of (A) the date that is one year after the date of the issuance of
such Letter of Credit and (B) the date that is five Business Days prior to the Revolving Credit Maturity Date; provided that any Standby Letter of Credit may provide for the automatic extension thereof for
any number of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash
collateralized or backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements reasonably satisfactory to the relevant Issuing Bank.
(ii) No Commercial
Letter of Credit shall expire later than the earlier to occur of (A) 180 days after the issuance thereof (or in each case such longer period as may be agreed by the relevant Issuing Bank and the applicable Borrower) and (B) the date that is five
Business Days prior to the Revolving Credit Maturity Date.
(d) Participations.
(i) By the issuance
of a Dollar Letter of Credit (or an amendment to a Dollar Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Dollar Revolving Lenders, the applicable Issuing Bank hereby
grants to each Dollar Revolving Lender, and each Dollar Revolving Lender hereby acquires from such Issuing Bank, a participation in such Dollar Letter of Credit equal to such Dollar Revolving Lender’s Dollar Revolving Applicable Percentage of the
aggregate amount available to be drawn under such Dollar Letter of Credit. In consideration and in furtherance of the foregoing, each Dollar Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the applicable Issuing Bank, such Dollar Revolving Lender’s Dollar Revolving Applicable Percentage of each Dollar LC Disbursement made by such Issuing Bank and not reimbursed by the Lead Borrower on the date due as provided in paragraph (e)
of this Section 2.05, or of any reimbursement payment required to be refunded to the applicable Borrower for any reason. Each Dollar Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Dollar Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Dollar Letter of Credit or the occurrence and continuance of
a Default or Event of Default or reduction or termination of the Dollar Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(ii) By the
issuance of a Multicurrency Letter of Credit (or an amendment to a Multicurrency Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Multicurrency Revolving Lenders, the
applicable Issuing Bank hereby grants to each Multicurrency Revolving Lender, and each Multicurrency Revolving Lender hereby acquires from such Issuing Bank, a participation in such Multicurrency Letter of Credit equal to such Multicurrency Revolving
Lender’s Multicurrency Revolving Applicable Percentage of the Dollar Equivalent of the aggregate amount available to be drawn under such Multicurrency Letter of Credit. In consideration and in furtherance of the foregoing, each Multicurrency
Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Multicurrency Revolving Lender’s Multicurrency Revolving Applicable Percentage of each
Multicurrency LC Disbursement made by such Issuing Bank and not reimbursed by the applicable Borrower on the date due as provided in paragraph (e) of this Section 2.05, or of any reimbursement payment required to be refunded to the
applicable Borrower for any reason. Each Multicurrency Revolving Lender acknowledges and
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agrees that its obligation to acquire participations pursuant to this paragraph in respect of Multicurrency Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Multicurrency Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction
or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement.
(i) (A) If the
applicable Issuing Bank makes any Dollar LC Disbursement in respect of a Dollar Letter of Credit, the Lead Borrower shall reimburse such Dollar LC Disbursement by paying to the Administrative Agent an amount equal to such Dollar LC Disbursement not
later than 1:00 p.m. on the Business Day immediately following the date on which the Lead Borrower receives notice under paragraph (g) of this Section 2.05 of such Dollar LC Disbursement (or, in the case of Dollar Letters of Credit,
if such notice is received less than two hours prior to the deadline for requesting ABR Revolving Borrowings pursuant to Section 2.03, on the second Business Day immediately following the date on which the Lead Borrower receives such notice);
provided that the Lead Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment, in the case of Dollar Letters of Credit, be
financed with an ABR Revolving Borrowing in an equivalent amount and, to the extent so financed, the Lead Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Lead Borrower
fails to make such payment or otherwise reimburse such Dollar LC Disbursement when due, the Administrative Agent shall notify each Dollar Revolving Lender of the applicable Dollar LC Disbursement, the payment then due from the Lead Borrower in
respect thereof and such Dollar Revolving Lender’s Dollar Revolving Applicable Percentage thereof. Promptly following receipt of such notice, each Dollar Revolving Lender shall pay to the Administrative Agent its Dollar Revolving Applicable
Percentage of the payment then due from the Lead Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Dollar Revolving Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Dollar Revolving Lenders. Promptly following receipt by
the Administrative Agent of any payment from the Lead Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Dollar Revolving Lenders have made payments
pursuant to this paragraph to reimburse such Issuing Bank, then to such Dollar Revolving Lenders and such Issuing Bank as their interests may appear.
(B) If the
applicable Issuing Bank makes any Multicurrency LC Disbursement in respect of a Multicurrency Letter of Credit, the Lead Borrower shall reimburse such Multicurrency LC Disbursement and in the same currency issued unless otherwise agreed by the
relevant Issuing Bank and the Lead Borrower by paying to the Administrative Agent an amount equal to such Multicurrency LC Disbursement not later than 1:00 p.m. on the Business Day immediately following the date on which the Lead Borrower receives
notice under paragraph (g) of this Section 2.05 of such Multicurrency LC Disbursement (or, in the case of Multicurrency Letters of Credit denominated in U.S. Dollars or Canadian Dollars, if such notice is received less than two hours
prior to the deadline for requesting ABR Revolving Borrowings pursuant to Section 2.03, on the second Business Day immediately following the date on which the Lead Borrower receives such notice); provided that
the Lead Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment, in the case of Multicurrency Letters of Credit denominated in U.S. Dollars or Canadian Dollars, be
financed with an ABR Revolving Borrowing in an equivalent amount and, to the extent so financed, the Lead Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Lead Borrower
fails to make such payment or otherwise reimburse such Multicurrency LC Disbursement when due, the Administrative Agent shall notify each Multicurrency Revolving Lender of the applicable Multicurrency LC Disbursement, the payment then due from the
Lead Borrower in respect thereof and such
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Revolving Lender’s Multicurrency Revolving Applicable Percentage of (x) in the case of a Letter of Credit denominated in U.S. Dollars,
such amount in U.S. Dollars, (y) in the case of a Letter of Credit denominated in Canadian Dollars, Euros or Pounds Sterling, such amount in Canadian Dollars, Euros or Pounds Sterling and (z) in the case of a Letter of Credit denominated in any
Alternative Currency (other than Canadian Dollars, Euros or Pounds Sterling) either (1) such amount in the Alternative Currency or (2) if such Revolving Lender has not agreed to make or cannot make Loans available in such Alternative Currency, the
Dollar Equivalent of such amount in U.S. Dollars plus an additional amount equal to the amount required to convert U.S. Dollars into the currency of the unreimbursed Multicurrency LC Disbursement (and the Lead Borrower shall, in the event that the
circumstances in clause (2) apply in respect of any Letter of Credit denominated in an Alternative Currency other than Canadian Dollars, Euros or Pounds Sterling, reimburse the applicable Revolving Lender(s) for such additional amount equal
to the amount required to convert U.S. Dollars received into the currency of the unreimbursed Multicurrency LC Disbursement). Promptly following receipt of such notice, each Multicurrency Revolving Lender shall pay to the Administrative Agent its
Multicurrency Revolving Applicable Percentage of such payment then due from the Lead Borrower (including, if the circumstances in clause (2) apply, the applicable additional amount), in the same manner as provided in Section 2.07 with
respect to Loans made by such Multicurrency Revolving Lender in the applicable currency (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Multicurrency Revolving
Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Multicurrency Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Lead
Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Multicurrency Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Bank, then to such Multicurrency Revolving Lenders and such Issuing Bank as their interests may appear.
(ii) If any
Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e) by the
time specified therein, such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the
date on which such payment is immediately available to such Issuing Bank at a rate per annum equal to the greater of the Overnight Rate from time to time in effect and a rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation. A certificate of the applicable Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest
error.
(f) Obligations Absolute. The Lead Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section 2.05 shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect,
(iii) payment by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or equitable discharge of, or provide a right of setoff against, the Lead Borrower’s obligations hereunder. Neither the
Administrative Agent, the Revolving Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under
or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Issuing Bank; provided that the foregoing shall not be construed to excuse such Issuing Bank
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from liability to the Lead Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived
by the Lead Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing
Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment
under a Dollar Letter of Credit or a Multicurrency Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Lead Borrower in writing or by telephone (promptly confirmed in writing) of such demand for payment and
whether such Issuing Bank has made or will make ana Dollar LC Disbursement or Multicurrency LC Disbursement, as applicable, thereunder; provided that no failure to give or delay in giving such
notice shall relieve the Lead Borrower of its obligation to reimburse (x) such Issuing Bank and the Dollar Revolving Lenders with respect to any such Dollar LC Disbursement or (y) such Issuing Bank and the Multicurrency Revolving Lenders with respect
to any such Multicurrency LC Disbursement, as applicable.
(h) Interim Interest.
(i) If any Issuing
Bank makes any Dollar LC Disbursement, then, unless the Lead Borrower reimburses such Dollar LC Disbursement in full on the date such Dollar LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the
date such Dollar LC Disbursement is made to but excluding the date that the Lead Borrower reimburses such Dollar LC Disbursement, at the rate per annum that would apply to such amount if such amount were a Revolving ABR Loan; provided that if the Lead Borrower fails to reimburse such Dollar LC Disbursement when due pursuant to paragraph (e) of this Section 2.05, then Section 2.13(f) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Dollar Revolving Lender pursuant to paragraph (e) of this Section 2.05 to
reimburse such Issuing Bank shall be for the account of such Dollar Revolving Lender to the extent of such payment and shall be payable on the date on which the Lead Borrower is required to reimburse the applicable Dollar LC Disbursement in full
(and, thereafter, on demand).
(ii) If any Issuing
Bank makes any Multicurrency LC Disbursement, then, unless the Lead Borrower reimburses such Multicurrency LC Disbursement in full on the date such Multicurrency LC Disbursement is made, the unpaid amount thereof plus, in respect of any Letter of
Credit denominated in an Alternative Currency other than Canadian Dollars, Euros or Pounds Sterling, an additional amount equal to the amount required to convert U.S. Dollars received into the currency of the unreimbursed Multicurrency LC
Disbursement, shall bear interest, for each day from and including the date such Multicurrency LC Disbursement is made to but excluding the date that the Lead Borrower reimburses such Multicurrency LC Disbursement, at the rate per annum that would
apply to such amount if such amount were a Revolving ABR Loan; provided that if the Lead Borrower fails to reimburse such Multicurrency LC Disbursement when due pursuant to paragraph (e) of this Section 2.05,
then Section 2.13(f) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Multicurrency Revolving Lender
pursuant to paragraph (e) of this Section 2.05 to reimburse such Issuing Bank shall be for the account of such Multicurrency Revolving Lender to the extent of such payment and shall be payable on the date on which the Lead Borrower is
required to reimburse the applicable Multicurrency LC Disbursement in full (and, thereafter, on demand),
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(i) Replacement or Resignation of an Issuing Bank or Addition of New Issuing Banks.
(i) Any Issuing Bank
may be replaced with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) at any time by written agreement among the Lead Borrower, the Administrative Agent and the successor Issuing Bank. The Administrative Agent
shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any such replacement becomes effective, the Lead Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b)(ii).
From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.
After the replacement of any Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by
it prior to such replacement, but shall not be required to issue additional Letters of Credit. The Lead Borrower may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or
delayed) and the relevant Revolving Lenders, designate one or more additional Revolving Lenders to act as an issuing bank under the terms of this Agreement. Any Revolving Lender designated as an issuing bank pursuant to this paragraph (i)
who agrees in writing to such designation shall be deemed to be an “Issuing Bank” (in addition to being a Revolving Lender) in respect of Letters of Credit issued or to be issued by such Revolving Lender, and, with respect to such Letters of Credit,
such term shall thereafter apply to the other Issuing Bank and such Revolving Lender.
(ii) Notwithstanding
anything to the contrary contained herein, each Issuing Bank may, upon ten days’ prior written notice to the Lead Borrower, each other Issuing Bank and the Lenders, resign as Issuing Bank, which resignation shall be effective as of the date
referenced in such notice (but in no event less than ten days after the delivery of such written notice); it being understood that in the event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective of
whether any amounts have been drawn at such time). In the event of any such resignation as an Issuing Bank, the Lead Borrower shall be entitled to appoint any Revolving Lender that accepts such appointment in writing as successor Issuing Bank. Upon
the acceptance of any appointment as Issuing Bank hereunder, the successor Issuing Bank shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Issuing Bank, and the retiring Issuing Bank shall
be discharged from its duties and obligations in such capacity hereunder.
(j) Cash Collateralization.
(i) If any Event of
Default exists, then on the Business Day that the Lead Borrower receives notice from the Administrative Agent at the direction of the Required Revolving Lenders demanding the deposit of Cash collateral pursuant to this paragraph (j), the Lead
Borrower shall deposit, in an interest-bearing account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (the “LC Collateral Account”), an
amount in Cash equal to 101% of the Dollar Equivalent of the LC Exposure as of such date (minus the amount then on deposit in the LC Collateral Account); provided that
the obligation to deposit such Cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the
Lead Borrower described in Section 7.01(f) or (g).
(ii) Any such
deposit under clause (i) above shall be held by the Administrative Agent as collateral for the payment and performance of the Secured Obligations in accordance with the provisions of this paragraph (j). The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of withdrawal, over such account, and the Lead Borrower
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hereby grants the Administrative Agent, for the benefit of the Secured Parties, a First Priority security interest in the LC Collateral
Account. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Lead Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent
of the Required Revolving Lenders) be applied to satisfy other Secured Obligations. If the Lead Borrower is required to provide an amount of Cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (together with
all interest and other earnings with respect thereto, to the extent not applied as aforesaid) shall be returned to the Lead Borrower promptly but in no event later than three Business Days after such Event of Default has been cured or waived.
Section 2.06 [Reserved].
Section 2.07 Funding of Borrowings.
(a) Except as otherwise agreed by the Lead Borrower and the Administrative Agent, each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount equal to such Lender’s respective Applicable Percentage. The
Administrative Agent will make such Loans available to the Lead Borrower by promptly crediting the amounts so received, in like funds, to the Funding Account or as otherwise directed by the Lead Borrower; provided that
ABR Revolving Loans made to finance the reimbursement of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section 2.07 and may, in reliance upon such assumption,
make available to the Lead Borrower a corresponding amount. In such event, if any Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Lead Borrower severally
agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Lead Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the Overnight Rate or (ii) in the case of the Lead Borrower, the interest rate applicable to Loans comprising such Borrowing at such time. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing and the Lead Borrower’s obligation to repay the Administrative Agent such corresponding amount pursuant to this Section 2.07(b) shall
cease. If the Lead Borrower pays such amount to the Administrative Agent, the amount so paid shall constitute a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or the Lead Borrower or any other Loan Party may have against any Lender as a result of any default by such Lender hereunder.
Section 2.08 Type; Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Rate Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request. Thereafter, the Lead Borrower may elect to convert any Borrowing to a Borrowing of a different Type or to continue such Borrowing and, in the case of a Eurocurrency Rate Borrowing, may elect Interest Periods
therefor, all as provided in this Section 2.08.
The Lead Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders based upon their Applicable Percentages and the Loans comprising each such portion shall be considered a separate Borrowing.
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(b) To make an election pursuant to this Section 2.08, the Lead Borrower shall notify the Administrative Agent of such election either in writing (by hand delivery, fax or
other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Lead Borrower were requesting a Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”) to the
Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Lead Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the Borrowing
to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective
date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the
resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Rate Borrowing; and
(iv) if the
resulting Borrowing is a Eurocurrency Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurocurrency Rate Borrowing but does not specify an Interest Period, then the applicable Borrower shall
be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details thereof and of such Lender’s portion of each
resulting Borrowing.
(e) If the applicable Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Rate Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of such Interest Period to a Eurocurrency Rate Borrowing with an Interest Period of one month. Notwithstanding any contrary provision
hereof, if an Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Lead Borrower, then, so long as such Event of Default exists (i) no outstanding Borrowing may be converted to or continued as
a Eurocurrency Rate Borrowing and (ii) unless repaid, (x) each Eurocurrency Rate Borrowing denominated in U.S. Dollars or Canadian Dollars shall be converted to an ABR Borrowing at the end of the then-current Interest Period applicable thereto and
(y) each Eurocurrency Rate Borrowing denominated in any other currency shall be continued as a Eurocurrency Rate Borrowing with an Interest Period of one month.
Section 2.09 Termination and Reduction
of Commitments.
(a) Unless previously terminated, (i) the Initial Term Loan Commitments (other than the 2016 Replacement USD Term Commitments which shall terminate as provided in clause (iii) below,
the 2017 Replacement USD Term Commitments which shall terminate as provided in clause (iv) below and the 2017 Incremental USD Term Commitments which shall terminate as provided in clause (v) below) shall automatically terminate upon the making of the
Initial Term Loans on the Closing Date, (ii) the Revolving Credit Commitments shall terminate on the Revolving Credit Maturity Date, (iii) the 2016 Replacement USD Term Commitments shall automatically terminate on the First Amendment Effective Date
upon the making of the 2016 Replacement USD Term Loans on the First Amendment Effective Date, (iv) the 2017 Replacement USD Term Commitments shall automatically terminate on the Third Amendment Effective Date upon the making of the 2017 Replacement
USD Term Loans on the Third Amendment Effective Date and (v) the 2017 Incremental USD Term Commitments shall
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automatically terminate on the Fourth Amendment Effective Date upon the making of the 2017 Incremental USD Term Loans on the Fourth Amendment Effective
Date.
(b) Upon delivering the notice required by Section 2.09(d), the Lead Borrower may at any time terminate the Revolving Credit Commitments upon (i) the payment in full in Cash of
all outstanding Revolving Loans, together with accrued and unpaid interest thereon, (ii) the cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to each outstanding Letter of Credit, the furnishing to the
Administrative Agent of a Cash deposit (or, if reasonably satisfactory to the applicable Issuing Bank, a backup standby letter of credit) equal to 100% of the LC Exposure (minus the amount then on deposit in
the LC Collateral Account) as of such date), (iii) the payment in full in Cash of all Ancillary Outstandings or, alternatively the furnishing to the relevant Ancillary Lender of a Cash deposit equal to 100% of the Ancillary Outstandings as of such
date, in each case, together with accrued and unpaid interest, fees and reimbursement expenses in respect thereof and (iv) the payment in full of all accrued and unpaid fees and all reimbursable expenses and other non-contingent Obligations with
respect to the Revolving Facility then due, together with accrued and unpaid interest (if any) thereon.
(c) Upon delivering the notice required by Section 2.09(d), the Lead Borrower may from time to time reduce the Revolving Credit Commitments; provided
that (i) each reduction of the Revolving Credit Commitments shall be in an amount that is an integral multiple of the Dollar Equivalent of $1,000,000 and not less than the Dollar Equivalent of $1,000,000 and (ii) the Lead Borrower shall not
reduce the Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.10 or Section 2.11, the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment.
(d) The Lead Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Credit Commitments under paragraph (b) or (c) of this Section 2.09
in writing at least three Business Days prior to the effective date of such termination or reduction (or such later date to which the Administrative Agent may agree), specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Revolving Lenders of the contents thereof. Each notice delivered by the Lead Borrower pursuant to this Section 2.09 shall be irrevocable; provided
that a notice of termination of the Revolving Credit Commitments delivered by the Lead Borrower may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Lead
Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Revolving Credit Commitments pursuant to this Section 2.09 shall be
permanent. Upon any reduction of the Revolving Credit Commitments, the Revolving Credit Commitment of each Revolving Lender shall be reduced by such Revolving Lender’s Applicable Percentage of such reduction amount.
Section 2.10 Repayment of Loans;
Evidence of Debt.
(a) The Lead Borrower hereby unconditionally promises to repay Initial Term Loans to the Administrative Agent for the account of each Term Lender (i) commencing September 30, 2015 (or,
(x) with respect to the USD Term Loans made on the First Amendment Effective Date, September 30, 2016 and (y) with respect to the USD Term Loans made on the Third Amendment Effective Date and the Fourth Amendment Effective Date, June 30, 2017) on the
last Business Day of each March, June, September and December prior to the Initial Term Loan Maturity Date (each such date being referred to as a “Loan Installment Date”), in each case, in an amount equal to
0.25% of the original principal amount of the Initial Term Loans (which, for the avoidance of doubt, with respect to (x) the USD Term Loans made on the First Amendment Effective Date, shall be based on the original principal amount of 2016
Replacement USD Term Loans and (y) the USD Term Loans made on the Third Amendment Effective Date and the Fourth Amendment Effective Date shall be based on the sum of the original principal amounts of 2017 Replacement USD Term Loans and the 2017
Incremental USD Term Loans) (as such payment installment amounts may be reduced from time to time as a result of the application of prepayments in accordance with Section 2.11 and repurchases in accordance with Section 9.05(g) or
increased as a result of any increase in the amount of such Initial Term Loans pursuant to Section 2.22(a)), and (ii) on the Initial Term Loan Maturity Date, in an amount equal to the remainder of the principal amount of the Initial Term
Loans, outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.
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(b) The Lead Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Revolving
Lender the then unpaid principal amount of each Revolving Loan on the Revolving Credit Maturity Date. In addition, on the Revolving Credit Maturity Date, the Lead Borrower shall (A) cancel and return all outstanding Letters of Credit (or
alternatively, with respect to any outstanding Letter of Credit, furnish to the Administrative Agent a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank, a backup standby letter of credit) equal to 100% of the LC Exposure (minus the Dollar Equivalent of the amount then on deposit in the LC Collateral Account) as of such date) and (B) make payment in full in Cash of all accrued and unpaid fees and all reimbursable expenses and other
Obligations with respect to the Revolving Facility then due, together with accrued and unpaid interest (if any) thereon.
(c) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Lead Borrower to such Lender resulting from each Loan
made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period (if any)
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Lead Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender’s share thereof.
(e) The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this Section 2.10 shall be prima facie evidence of the existence and amounts
of the obligations recorded therein (absent manifest error); provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any
manner affect the obligation of the Lead Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of any
inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph (d) of this Section 2.10 and any Lender’s records, the accounts of the Administrative Agent shall govern.
(f) Any Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the Lead Borrower shall prepare, execute and deliver to such Lender a Promissory
Note payable to such Lender and its registered assigns; it being understood and agreed that such Lender (and/or its applicable assign) shall be required to return such Promissory Note to the Lead Borrower in accordance with Section 9.05(b)(iii)
and upon the occurrence of the Termination Date (or as promptly thereafter as practicable).
Section 2.11 Prepayment of Loans.
(a) Optional Prepayments.
(i) Upon prior
notice in accordance with paragraph (a)(iii) of this Section 2.11, the Lead Borrower shall have the right at any time and from time to time to prepay any Borrowing of Term Loans in whole or in part without premium or penalty (but
subject to Sections 2.12(f) and 2.16). Each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages.
(ii) Upon prior
notice in accordance with paragraph (a)(iii) of this Section 2.11, the Lead Borrower shall have the right at any time and from time to time to prepay any Borrowing of Revolving Loans, including any Additional Revolving Loans, in whole
or in part without premium or penalty (but subject to Section 2.16). Prepayments made pursuant to this Section 2.11(a)(ii), first, shall be applied to outstanding LC Disbursements and, second, shall be applied ratably to the
outstanding Revolving Loans, including any Additional Revolving Loans. Each such prepayment shall be paid to the Revolving Lenders in accordance with their respective Applicable Percentages.
(iii) The Lead
Borrower shall notify the Administrative Agent in writing or by telephone (promptly confirmed in writing) of any prepayment under this Section 2.11(a) (A) in the case of a prepayment of a Eurocurrency Rate Borrowing, not later than 1:00 p.m.
three Business Days
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before the date of prepayment or (B) in the case of a prepayment of an ABR Borrowing or a Canadian Base Rate Borrowing, not later
than 1:00 p.m. one Business Day before the date of prepayment (or, in the case of clauses (A) and (B), such later date to which the Administrative Agent may agree). Each such notice shall be in the form of Exhibit H hereto
and shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment delivered by the Lead Borrower
may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Lead Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Promptly following receipt of any such notice relating to any Borrowing, the Administrative Agent shall advise the relevant Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount
at least equal to the amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02(c). Each prepayment of Term Loans made pursuant to this Section 2.11(a) shall be applied
against the remaining scheduled installments of principal due in respect of the Term Loans of such Class in the manner specified by the Lead Borrower or, if not so specified on or prior to the date of such optional prepayment, in direct order of
maturity. Each prepayment of Loans shall be made in the currency in which such Loans are denominated.
(b) Mandatory Prepayments.
(i) No later than
the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Lead Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending September 30, 2016,
the Lead Borrower shall prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount equal to (A) 50% of Excess
Cash Flow of the Lead Borrower and its Restricted Subsidiaries for the Fiscal Year then ended, minus (B) at the option of the Lead Borrower, the aggregate principal amount of (x) any Initial Term Loans,
Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date, and (y) the amount of any reduction in the outstanding amount of any Initial Term Loans or Additional Term Loans
resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction), in each case under this clause (y) prior to such date and based upon the actual amount of Cash paid in
connection with the relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the
case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed
with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Lead Borrower or its Restricted Subsidiaries); provided that (1) such percentage of Excess Cash Flow shall be reduced to (I)
25% of Excess Cash Flow if the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant Fiscal Year (but without giving effect to the payment required hereby) is less than or equal to 2.00 to 1.00, but greater
than 1.50 to 1.00 and (II) 0% of Excess Cash Flow if the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant Fiscal Year (but without giving effect to the payment required hereby) is less than or equal to 1.50
to 1.00 and (2) no prepayment under this Section 2.11(b)(i) shall be required to the extent that the amount thereof would not exceed $50,000,000.
(ii) No later than
the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $50,000,000 in any Fiscal Year (provided,
however, that the aggregate principal amount of excluded Prepayment Asset Sales shall not exceed $175,000,000 in any Fiscal Year), the Lead Borrower shall apply an amount equal to 100% of the Net Proceeds or
Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans and
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Additional Term Loans in accordance with clause (vi) below; provided that if, prior
to the date any such prepayment is required to be made, the Lead Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Lead
Borrower or any of its subsidiaries, then so long as no Event of Default then exists, the Lead Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (A) the
Subject Proceeds are so reinvested within 15 months following receipt thereof or (B) the Lead Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 15-month period and the Subject Proceeds are so reinvested
within six months after the expiration of such 15-month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of
the applicable period, the Lead Borrower shall promptly prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately
preceding proviso); provided, further, that if, at the time that any such prepayment would be required hereunder, the Lead Borrower or any of its Restricted Subsidiaries is required to offer to repay or
repurchase any other Indebtedness permitted hereunder to be secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the Subject Proceeds
(such Indebtedness required to be offered to be so repaid or repurchased, the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro
rata basis to the prepayment of the Initial Term Loans and Additional Term Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Initial
Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided that the portion
of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any,
of the Subject Proceeds shall be allocated to the Initial Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of the prepayment of the Initial Term Loans and Additional Term Loans that would have otherwise been
required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable
Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Initial Term Loans and Additional Term
Loans in accordance with the terms hereof.
(iii) In the event
that the Lead Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Lead Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01,
except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to
refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c)), the Lead Borrower shall, substantially simultaneously with (and in any event not later than the next succeeding Business Day) the
receipt of such Net Proceeds by the Lead Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance
with clause (vi) below.
(iv) Notwithstanding
anything in this Section 2.11(b) to the contrary, (A) the Lead Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(i) or (ii) above to the extent that the
relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may
be, for so long as the repatriation to the Lead Borrower of any such amount would be prohibited under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected
to result in, a
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material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of
such Foreign Subsidiary (the Lead Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation); it being understood
that once the repatriation of the relevant affected Subject Proceeds or Excess Cash Flow, as the case may be, is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of
such director, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above, the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or
Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional Taxes payable
or reserved against as a result thereof) to the repayment of the Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)) and (B) if the Lead
Borrower determines in good faith that the repatriation to the Lead Borrower of any amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in
material and adverse tax consequences, taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as reasonably determined
by the Lead Borrower, the amount the Lead Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to
the Lead Borrower the Restricted Amount without incurring such material and adverse tax liability; provided that to the extent that the repatriation of any Subject Proceeds or Excess Cash Flow from the
relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clause (B), shall be promptly applied to the
repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv));
(v) Each Lender may
elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Lead Borrower pursuant to
this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, solely to the extent not applied to any other Indebtedness of the Lead Borrower or its subsidiaries as a
mandatory prepayment of such Indebtedness, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Lead Borrower; provided that, for the
avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of Refinancing Indebtedness incurred to refinance all or a portion of the Initial
Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c). If any Lender fails
to deliver a notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an
acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and Additional Term Loans.
(vi) Except as may
otherwise be set forth in any amend