FIFTH AMENDMENT TO CREDIT AGREEMENT

EX-10.2 3 d446375dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

FIFTH AMENDMENT TO CREDIT AGREEMENT

This FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of August 18, 2017, is entered into by and among INTERCONTINENTAL EXCHANGE, INC., a Delaware corporation (the “Borrower”), NYSE HOLDINGS LLC, as a guarantor, the Lenders (as hereinafter defined) party hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent.

RECITALS

A. The Borrower, ICE Europe Parent Limited, the several lenders from time to time party thereto (the “Lenders”), and the Administrative Agent are party to the Credit Agreement, dated as of April 3, 2014 (as amended by the First Amendment to Credit Agreement, dated as of May 15, 2015, the Second Amendment to Credit Agreement, dated as of November 9, 2015, the Third Amendment to Credit Agreement, dated as of November 13, 2015, and the Fourth Amendment to Credit Agreement, dated as of August 18, 2017, the “Credit Agreement”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement as amended by this Amendment.

B. The Borrower has requested that the Lenders amend the Credit Agreement and the Lenders are willing to consent to such amendments to the Credit Agreement on the terms and subject to conditions set forth herein.

STATEMENT OF AGREEMENT

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

ARTICLE I

AMENDMENTS TO CREDIT AGREEMENT

1.1 Effective upon the Fifth Amendment Effective Date (as hereinafter defined), 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 conformed copy of the Credit Agreement attached hereto as Exhibit A, which shall include, for the avoidance of doubt, amendments necessary to remove ICE Europe Parent Limited as a Borrower and Intercontinental Exchange, Inc. as a Guarantor approved by the Lenders in the Fourth Amendment.

1.2 Effective upon the Fifth Amendment Effective Date, Exhibit C (Form of Compliance Certificate) to the Credit Agreement is hereby deleted in its entirety and replaced with the new Exhibit C to the Credit Agreement attached hereto as Exhibit B.

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ARTICLE II

CONDITIONS OF EFFECTIVENESS

2.1 The amendments set forth in ARTICLE I shall become effective as of the date (the “Fifth Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:

(a) The Fourth Amendment shall have become effective.

(b) The Administrative Agent shall have received an executed counterpart of this Amendment from each of the Credit Parties and Lenders constituting the Required Lenders.

(c) The Borrower shall have paid to (i) Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, the Administrative Agent and the Lenders any fees required under the Engagement Letter (as defined below) to be paid to each of them, in the amounts due and payable on the Fifth Amendment Effective Date as required by the terms thereof, and (ii) The Bank of Tokyo-Mitsubishi UFJ, Ltd. the fee required under that certain fee letter between the Borrower and The Bank of Tokyo-Mitsubishi UFJ, Ltd., in connection with its appointment as a joint bookrunner and joint lead arranger in respect of the Amendment, in the amount due and payable on the Fifth Amendment Effective Date as required by the terms thereof. The “Engagement Letter” means that certain letter from Wells Fargo, Wells Fargo Securities, LLC, BofA and Merrill Lynch, Pierce, Fenner & Smith Incorporated, to the Borrower, dated July 31, 2017, relating to certain fees payable by the Borrower in respect of the transactions contemplated by this Amendment.

(d) The Borrower shall have delivered to the Administrative Agent a certificate, signed by a Responsible Officer of the Borrower, certifying as to the matters set forth in ARTICLE III hereof.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

The Borrower hereby represents and warrants, on and as of the Fifth Amendment Effective Date, that (i) the representations and warranties contained in the Credit Agreement (except the representation set forth in Section 4.8 thereof with respect to clauses (i) and (ii) of the definition of “Material Adverse Effect” only) and the other Credit Documents qualified as to materiality are true and correct and those not so qualified are true and correct in all material respects, both immediately before and after giving effect to this Amendment (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct (if qualified as to materiality) or true and correct in all material respects (if not so qualified), in each case only on and as of such specific date), (ii) this Amendment has been duly authorized, executed and delivered by such Credit Party and constitutes the legal, valid and binding obligation of such Credit Party enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, by general equitable principles or by principles of good faith and fair dealing

 

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(regardless of whether enforcement is sought in equity or at law) and (iii) no Default or Event of Default shall have occurred and be continuing on the Fifth Amendment Effective Date, both immediately before and after giving effect to this Amendment and the amendments contemplated hereby.

ARTICLE IV

ACKNOWLEDGEMENT AND CONFIRMATION

Each party to this Amendment hereby confirms and agrees that, after giving effect to this Amendment and the amendments contemplated hereby, and except as expressly modified hereby, the Credit Agreement and the other Credit Documents to which it is a party remain in full force and effect and enforceable against such party in accordance with their respective terms and shall not be discharged, diminished, limited or otherwise affected in any respect.

ARTICLE V

MISCELLANEOUS

5.1 Governing Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and conflicts of law rules).

5.2 Credit Document. As used in the Credit Agreement, “hereinafter,” “hereto,” “hereof,” and words of similar import shall, unless the context otherwise requires, mean the Credit Agreement after amendment by this Amendment. Any reference to the Credit Agreement or any of the other Credit Documents herein or in any such documents shall refer to the Credit Agreement and the other Credit Documents as amended hereby. This Amendment is limited to the matters expressly set forth herein, and shall not constitute or be deemed to constitute an amendment, modification or waiver of any provision of the Credit Agreement except as expressly set forth herein. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement.

5.3 Expenses. The Borrower shall pay all reasonable and documented fees and expenses of counsel to the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment.

5.4 Severability. To the extent any provision of this Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Amendment in any jurisdiction.

5.5 Successors and Assigns. This Amendment shall be binding upon, inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.

 

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5.6 Construction. The headings of the various sections and subsections of this Amendment have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof.

5.7 Counterparts; Integration. This Amendment may be executed and delivered via facsimile or electronic mail with the same force and effect as if an original were executed and may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures hereto were upon the same instrument. This Amendment constitutes the entire contract among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.

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

 

 

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Exhibit A

Composite Blacklined Conformed Copy of Credit Agreement

Reflecting Fifth Amendment to the Credit Agreement

[see attached]

 

A-1

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CUSIP Number: Deal # 45856GAC8

Revolving Loans (Dollar Revolving Loans) CUSIP # 45856GAD6

Revolving Loans (Multicurrency Revolving Loans) CUSIP # 45856GAE4

Conformed Copy – Conformed through the ThirdFifth Amendment

 

 

 

CREDIT AGREEMENT

among

INTERCONTINENTAL EXCHANGE, INC.

and

ICE EUROPE PARENT LIMITED

as Borrowersas Borrower,

THE LENDERS NAMED HEREIN,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Primary Administrative Agent, Issuing Lender and a Swingline Lender

BANK OF AMERICA, N.A.,

as Syndication Agent, Backup Administrative Agent and a Swingline Lender

and

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

BANK OF CHINA, NEW YORK BRANCH,

BANK OF MONTREAL,

BBVA COMPASS BANK, and

FIFTH THIRD BANK ,

MIZUHO BANK, LTD., and

PNC BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents

$3,000,000,0003,400,000,000 Senior Credit Facilities

WELLS FARGO SECURITIES, LLC

and,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., and

BANK OF CHINA, NEW YORK BRANCH,

as Joint Bookrunners and Joint Lead Arrangers

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

BANK OF CHINA, NEW YORK BRANCH,

BMO CAPITAL MARKETS CORP.,

BBVA COMPASS BANK, and

FIFTH THIRD BANK,

MIZUHO BANK, LTD., and

PNC CAPITAL MARKETS, LLC,

as Joint Lead Arrangers

Dated as of April 3, 2014

 

 

 

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TABLE OF CONTENTS

 

				Page
ARTICLE I
DEFINITIONS
1.1		Defined Terms			1
1.2		Accounting Terms			3335
1.3		Other Terms; Construction			3435
1.4		Currency Equivalents Generally			3537
1.5		Redenomination of Certain Foreign Currencies			3637
1.6		Interest Rates			3638
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1		Commitments			3738
2.2		Borrowings			3840
2.3		Disbursements; Funding Reliance; Domicile of Loans			4344
2.4		Evidence of Debt; Notes			4445
2.5		Termination and Reduction of Commitments			4546
2.6		Mandatory Payments and Prepayments			4647
2.7		Voluntary Prepayments			4748
2.8		Interest			4748
2.9		Fees			4950
2.10		Interest Periods			5152
2.11		Conversions and Continuations			5253
2.12		Method of Payments; Computations; Apportionment of Payments			5354
2.13		Recovery of Payments			5556
2.14		Pro Rata Treatment			5556
2.15		Increased Costs; Change in Circumstances; Illegality			5657
2.16		Taxes			5960
2.17		Compensation			6465
2.18		Replacement of Lenders; Mitigation of Costs			6566
2.19		Letters of Credit			6667
2.20		Increase in Commitments			7475
2.21		Defaulting Lenders			7676
2.22		Cash Collateral			7980
2.23		Loans to the Subsidiary Borrower; etc			80[Reserved]81

 

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ARTICLE III
CONDITIONS OF BORROWING
3.1		Conditions of Effectiveness and Initial Borrowing			81[Reserved]81
3.2		Conditions of All Borrowings			8383
3.3		Conditions of Borrowing for IDHC Acquisition			84[Reserved]84
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1		Corporate Organization and Power			8787
4.2		Authorization; Enforceability			8787
4.3		No Violation			8788
4.4		Governmental and Third-Party Authorization; Permits			8888
4.5		Litigation			8888
4.6		Full Disclosure			8888
4.7		Margin Regulations			8989
4.8		No Material Adverse Effect			8989
4.9		Financial Matters			8989
4.10		Compliance with Laws			8989
4.11		Investment Company Act			8990
4.12		OFAC; Anti-Terrorism Laws			8990
4.13		Solvency			90
ARTICLE V
AFFIRMATIVE COVENANTS
5.1		Financial Statements			9091
5.2		Other Business and Financial Information			9292
5.3		Existence; Franchises; Maintenance of Properties			9393
5.4		Use of Proceeds			9394
5.5		Compliance with Laws			9394
5.6		Payment of Taxes			9394
5.7		Insurance			9494
5.8		Maintenance of Books and Records; Inspection			9494
5.9		Subsidiary Guarantors			9495
5.10		Anti-Corruption Laws, OFAC, PATRIOT Act Compliance			9596
ARTICLE VI
FINANCIAL COVENANT
6.1		Maximum Total Leverage Ratio			9697

 

ARTICLE VII
NEGATIVE COVENANTS
7.1		Merger; Consolidation			9797

 

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7.2		Subsidiary Indebtedness			9798
7.3		Liens			99100
7.4		Asset Dispositions			102102
7.5		Dividend Payments			102[Reserved]102
7.6		Acquisitions			102[Reserved]103
ARTICLE VIII
EVENTS OF DEFAULT
8.1		Events of Default			102103
8.2		Remedies: Termination of Commitments, Acceleration, etc			104105
8.3		Remedies: Setoff			105106
ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1		Appointment and Authority			106106
9.2		Rights as a Lender			106107
9.3		Exculpatory Provisions			107107
9.4		Reliance by Administrative Agent			108108
9.5		Delegation of Duties			108108
9.6		Resignation of Administrative Agent			108109
9.7		Non-Reliance on Administrative Agent and Other Lenders			109110
9.8		No Other Duties, Etc			109110
9.9		Administrative Agent May File Proofs of Claim			109110
9.10		Guaranty Matters; Ineligible Assignees Letter Agreement			110111
9.11		Swingline Lender			111111
9.12		Replacement of Impaired Agent			111112
9.13		Backup Administrative Agent			111112
ARTICLE X
MISCELLANEOUS
10.1		Expenses; Indemnity; Damage Waiver			112113
10.2		Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of Process			114115
10.3		Waiver of Jury Trial			116116
10.4		Notices; Effectiveness; Electronic Communication			116117
10.5		Amendments, Waivers, etc			117118
10.6		Successors and Assigns			119119
10.7		No Waiver			124124
10.8		Survival			124125
10.9		Severability			124125
10.10		Construction			124125
10.11		No Fiduciary Duty			125125

 

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10.12		Confidentiality			125126
10.13		Counterparts; Integration; Effectiveness			126126
10.14		Disclosure of Information			126127
10.15		USA Patriot Act Notice			126127
10.16		The Parent Borrower as Agent for the Subsidiary Borrower			126[Reserved]127
10.17		Judgment Currency			127127
10.18		Termination of Terminating Credit Facilities			128[Reserved]128
10.19		Not a Grandfathered Obligation			128128
ARTICLE XI
GUARANTY BY THE PARENT BORROWER
11.1		The Guaranty			128
11.2		Guaranty Unconditional			128
11.3		Duty Only Upon Payment in Full; Reinstatement in Certain Circumstances			129
11.4		Waiver by the Parent Borrower			129
11.5		Subrogation			129
11.6		Stay of Acceleration			130
11.7		Continuing Guaranty; Assignments			130
10.20		Acknowledgement and Consent to Bail-In of EEA Financial Institutions			129

 

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EXHIBITS

 

Exhibit A-1		Form of Dollar Revolving Note
Exhibit A-2		Form of Multicurrency Revolving Note
Exhibit A-3		Form of Dollar Swingline Note
Exhibit A-4		Form of Multicurrency Swingline Note
Exhibit B-1		Form of Notice of Borrowing
Exhibit B-2		Form of Notice of Swingline Borrowing
Exhibit B-3		Form of Notice of Conversion/Continuation
Exhibit B-4		Form of Letter of Credit Notice
Exhibit C		Form of Compliance Certificate
Exhibit D		Form of Assignment and Assumption
Exhibit E		Forms of U.S. Tax Compliance Certificate

SCHEDULES

 

Schedule 1.1(a)		Commitments and Notice Addresses
Schedule 1.1(b)		Existing Letters of Credit
Schedule 7.3		Liens

 

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CREDIT AGREEMENT

THIS CREDIT AGREEMENT, dated as of the 3rd day of April, 2014, is made among INTERCONTINENTAL EXCHANGE, INC. (formerly INTERCONTINENTAL- EXCHANGE GROUP, INC., a Delaware corporation (the “Parent Borrower”), ICE EUROPE PARENT LIMITED, a limited company incorporated under the laws of England and Wales (the “Subsidiary Borrower”, and together with the Parent Borrower, the “BorrowersBorrower”), the Lenders (as hereinafter defined), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Primary Administrative Agent (as hereinafter defined) for the Lenders, and BANK OF AMERICA, N.A., as Syndication Agent (as hereinafter defined) and Backup Administrative Agent (as hereinafter defined) for the Lenders.

BACKGROUND STATEMENT

The Borrowers haveBorrower has requested that the Lenders make available a revolving credit facility to the BorrowersBorrower in the aggregate principal amount of $3,000,000,000.3,400,000,000. The BorrowersBorrower will use the proceeds of these facilities as provided in Section 5.4. The Lenders are willing to make available to the BorrowersBorrower the credit facilities described herein subject to and on the terms and conditions set forth in this Agreement.

AGREEMENT

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

ARTICLE I

DEFINITIONS

1.1 Defined Terms. For purposes of this Agreement, in addition to the terms defined elsewhere herein, the following terms have the meanings set forth below (such meanings to be equally applicable to the singular and plural forms thereof):

“Account Designation Letter” means a letter from the BorrowersBorrower to the Administrative Agent, duly completed and signed by an Authorized Officer of eachthe Borrower and in form and substance reasonably satisfactory to the Administrative Agent, listing any one or more accounts to which suchthe Borrower may from time to time request the Administrative Agent to forward the proceeds of any Loans made hereunder.

“Acquisition” means any transaction or series of related transactions, consummated on or after the date hereof, by which the Parent Borrower directly, or indirectly through one or more Subsidiaries, (i) acquires any division or line of business of any Person, or all or substantially all of the assets, of any Person, whether through purchase of assets, merger or otherwise, or (ii) acquires Capital Stock of any Person having at least a majority of Total Voting Power of the then outstanding Capital Stock of such Person.

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“Additional Commitment” has the meaning set forth in Section 2.20(c).

“Additional Lender” has the meaning set forth in Section 2.20(a).

“Adjusted Base Rate” means, at any time with respect to any Base Rate Loan, a rate per annum equal to the Base Rate as in effect at such time plus the Applicable Percentage for Base Rate Loans as in effect at such time.

“Adjusted LIBOR Market Index Rate” means, for any date, with respect to any LIBOR Market Index Rate Loan, a rate per annum equal to the LIBOR Market Index Rate as in effect at such time plus the Applicable Percentage for LIBOR Loans as in effect at such time.

“Adjusted LIBOR Rate” means, at any time with respect to any LIBOR Loan, a rate per annum equal to the LIBOR Rate (as set forth in clause (i) of the definition thereof) as in effect at such time plus the Applicable Percentage for LIBOR Loans as in effect at such time.

“Administrative Agent” means, (a) during a Wells Fargo Availability Period, the Primary Administrative Agent and (b) during a Wells Fargo Unavailability Period, the Backup Administrative Agent; provided, that (x) it is understood that matters concerning the funding of Multicurrency Revolving Loans denominated in a Foreign Currency and Multicurrency Swingline Loans and the disbursement of the proceeds thereof will be administered by the Multicurrency Agent, and references herein to the “Administrative Agent” in such a context shall be deemed to refer to the “Multicurrency Agent” and (y) any reference to the “Administrative Agent” in Section 2.12(e) shall at all times be deemed to refer to the Primary Administrative Agent and the Backup Administrative Agent.

“Administrative Questionnaire” means an administrative questionnaire in the form supplied by the Administrative Agent.

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. Notwithstanding the foregoing, no Agent nor any Lender shall be deemed an “Affiliate” of athe Borrower or any Subsidiary of athe Borrower.

“Agents” means, collectively, the Multicurrency Agent, the Primary Administrative Agent and the Backup Administrative Agent.

“Aggregate Dollar Revolving Credit Exposure” means, at any time, the sum of (i) the aggregate principal amount of Dollar Revolving Loans outstanding at such time, (ii) the aggregate principal amount of Dollar Swingline Loans outstanding at such time and (iii) the aggregate Dollar Letter of Credit Exposure of all Dollar Revolving Lenders at such time.

“Aggregate Multicurrency Revolving Credit Exposure” means, at any time, the sum of (i) the Dollar Amount of the Multicurrency Revolving Loans outstanding at such time, (ii) the Dollar Amount of the Multicurrency Swingline Loans outstanding at such time and (iii) the aggregate Multicurrency Letter of Credit Exposure of all Multicurrency Revolving Lenders at such time.

“Agreement” means this Credit Agreement.

 

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“Applicable Percentage” means, at any time from and after the Closing Date, the applicable percentage (i) to be added to the Base Rate for purposes of determining the Adjusted Base Rate, (ii) to be added to the LIBOR Rate and the LIBOR Market Index Rate for purposes of, respectively, determining the Adjusted LIBOR Rate and Adjusted LIBOR Market Index Rate and (iii) to be used in calculating the commitment fee payable pursuant to Section 2.9(a)(ii), in each case as determined under the following matrix with reference to the Debt Rating (as defined and as determined as set forth below); provided, that, on and after the Original Maturity Date, the Applicable Commitment Fee Rate for each Tier shall be permanently increased by 10 basis points:

 

Tier		Debt Rating		Applicable LIBOR Margin				Applicable Base Rate Margin				Applicable Commitment Fee Rate
I		AA-/Aa3 or higher			0.875	%			0.000	%			0.080	%
II		A+/A1			1.000	%			0.000	%			0.100	%
III		A/A2			1.125	%			0.125	%			0.125	%
IV		A-/A3			1.250	%			0.250	%			0.150	%
V		BBB+/Baa1 or lower			1.500	%			0.500	%			0.200	%

“Debt Rating” means, as of any date of determination, the rating as determined by S&P and Moody’s of the Parent Borrower’s non-credit-enhanced, senior unsecured long-term debt. For purposes of determining the applicable pricing tier, (i) if the respective Debt Ratings issued by the foregoing rating agencies differ by one pricing tier, then the pricing tier for the higher of such Debt Ratings shall apply (with pricing tier I being the highest and pricing tier V being the lowest); (ii) if there is a split in Debt Ratings of more than one pricing tier, then the pricing tier that is one level lower than the pricing tier of the higher Debt Rating shall apply; (iii) if the Parent Borrower has only one Debt Rating, the pricing tier corresponding to that Debt Rating shall apply; and (iv) if the Parent Borrower does not have any Debt Rating, pricing tier V shall apply. Initially, the Applicable Percentage shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to Section 3.1(a)(iv)on the Closing Date. Thereafter, each change in the Applicable Percentage resulting from a publicly announced change in the Debt Rating shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.

“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act of 2010, and all other laws, rules, and regulations of any jurisdiction applicable to the Parent Borrower and its Affiliates concerning or relating to bribery or corruption.

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

 

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“Arrangers” mean Wells Fargo Securities, LLC, Merrill Lynch, Price, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), The Bank of Tokyo-Mitsubishi UFJ, Ltd., Bank of China, New York Branch, BMO Capital Markets Corp., BBVA Compass Bank and, Fifth Third Bank, Mizuho Bank, Ltd. and PNC Capital Markets, LLC and their respective successors.

“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 10.6(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form approved by the Administrative Agent.

“Authorized Officer” means, with respect to any action specified herein to be taken by or on behalf of athe Borrower, any officer of suchthe Borrower duly authorized by resolution of its board of directors or other governing body to take such action on its behalf, and whose signature and incumbency shall have been certified to the Administrative Agent by the secretary or an assistant secretary of suchthe Borrower.

“Backup Administrative Agent” means BofA, in its capacity as Backup Administrative Agent, and its successors and permitted assigns in such capacity.

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

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

“Bankruptcy Code” means 11 U.S.C. §§ 101 et seq., and any successor statute.

“Bankruptcy Event” means the occurrence of an event specified in Section 8.1(f) or 8.1(g).

“Base Rate” means the highest of (i) the per annum interest rate publicly announced from time to time by Wells Fargo in Charlotte, North Carolina, to be its prime rate (which may not necessarily be its lowest or best lending rate), as adjusted to conform to changes as of the opening of business on the date of any such change in such prime rate, (ii) the Federal Funds Rate plus 0.5% per annum, as adjusted to conform to changes as of the opening of business on the date of any such change in the Federal Funds Rate, and (iii) the LIBOR Rate for an interest period of one month plus 1.00%, as adjusted to conform to changes as of the opening of business on the date of any such change of such LIBOR Rate.

“Base Rate Loan” means, at any time, any Dollar Revolving Loan or any Multicurrency Loan denominated in Dollars that bears interest at such time at the applicable Adjusted Base Rate.

“BofA” means Bank of America, N.A.

 

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“BofA Fee Letter” means the letter from BofA to the Parent Borrower, dated October 29, 2015, relating to certain fees payable by the Parent Borrower in respect of the transactions contemplated by this Agreement.

“BorrowersBorrower” has the meaning given to such term in the introductory paragraph hereof.

“Borrowing” means the incurrence by athe Borrower (including as a result of conversions and continuations of outstanding Loans pursuant to Section 2.11) on a single date of a group of Loans of a single Class, Currency and Type (including a Swingline Loan made by any Swingline Lender) and, in the case of LIBOR Loans, as to which a single Interest Period is in effect.

“Borrowing Date” means, with respect to any Borrowing, the date upon which such Borrowing is made.

“Business Day” means (i) any day other than a Saturday or Sunday, a legal holiday or a day on which commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by law to be closed, (ii) in respect of any notice or determination in connection with, and payments of principal and interest on, LIBOR Loans denominated in Dollars or a LIBOR Market Index Rate Loan, any such day that is also a day on which trading in Dollar deposits is conducted by banks in London, England in the London interbank Eurodollar market, (iii) in respect of any notice or determination in connection with, and payments of principal and interest on, Loans denominated in Euros, any such day that is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system (TARGET) (or, if such clearing system ceases to be operative, such other clearing system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) is open for settlement of payment in Euros, and (iv) in respect of any notice or determination in connection with, and payments of principal and interest on, Loans denominated in any Currency other than Dollars or Euros, any such day that is also a day on which banks are open for foreign exchange business in the principal financial center of the country of such Currency.

“Capital Lease” means, with respect to any Person, any lease of property (whether real, personal or mixed) by such Person as lessee that is or is required to be, in accordance with GAAP, recorded as a capital lease on such Person’s balance sheet.

“Capital Lease Obligations” means, with respect to any Person, the obligations of such Person to pay rent or other amounts under any Capital Lease of such Person, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Capital Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether common or preferred) of such corporation, and (ii) with respect to any Person that is not a corporation, any and all partnership, membership, limited liability company or other equity interests of such Person; and in each case under clauses (i) and (ii), any and all warrants, rights or options to purchase any of the foregoing or any securities convertible into or exchangeable for any of the foregoing.

“Cash Collateral Account” has the meaning given to such term in Section 2.19(i).

 

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“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Lender and the Lenders, as collateral for the Letter of Credit Exposure or obligations of Lenders to fund participations in respect thereof, cash or deposit account balances or, if the Administrative Agent and the Issuing Lender shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Issuing Lender. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Cash Equivalents” means (i) for purposes of Section 2.19(i) only, (A) securities issued or unconditionally guaranteed or insured by the United States of America or any agency or instrumentality thereof, backed by the full faith and credit of the United States of America and maturing within one year from the date of acquisition, (B) commercial paper issued by any Person organized under the laws of the United States of America, maturing within 180 days from the date of acquisition and, at the time of acquisition, having a rating of at least A-1 or the equivalent thereof by Standard & Poor’s Ratings Services or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc., (C) time deposits and certificates of deposit maturing within 180 days from the date of issuance and issued by a bank or trust company organized under the laws of the United States of America or any state thereof (y) that has combined capital and surplus of at least $500,000,000 or (z) that has (or is a subsidiary of a bank holding company that has) a long-term unsecured debt rating of at least A or the equivalent thereof by Standard & Poor’s Ratings Services or at least A2 or the equivalent thereof by Moody’s Investors Service, Inc., (D) repurchase obligations with a term not exceeding 30 days with respect to underlying securities of the types described in clause (i)(A) above entered into with any bank or trust company meeting the qualifications specified in clause (i)(C) above, and (E) money market funds at least ninety-five percent (95%) of the assets of which are continuously invested in securities of the foregoing types; and (ii) for all other purposes, as defined in accordance with GAAP.

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

“Change of Control” means an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the equity securities of the Parent Borrower entitled to vote for members of the board of directors or equivalent governing body of the Parent Borrower on a fully-diluted basis.

 

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“Class” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are Dollar Revolving Loans, Multicurrency Revolving Loans, Dollar Swingline Loans or Multicurrency Swingline Loans; when used in reference to any Lender, refers to whether such Lender is a Dollar Revolving Lender or a Multicurrency Revolving Lender; and, when used in reference to any Commitment, refers to whether such Commitment is a Dollar Revolving Commitment or a Multicurrency Revolving Commitment.

“Clearing House Subsidiary” means any Subsidiary of the Parent Borrower the principal business of which is the provision of or conducting of clearing, depository or settlement operations.

“Closing Date” means the first date upon which the initial extensions of credit are made pursuant to this Agreement, which shall be the date upon which each of the conditions set forth in Sections 3.1 and 3.2 shall have been satisfied or waived in accordance with the terms of this Agreement.April 3, 2014.

“Co-Documentation Agents” means the Lenders identified as such on the cover page hereof.

“Code” means the Internal Revenue Code of 1986, and any successor statute, and all rules and regulations from time to time promulgated thereunder.

“Commitments” means, collectively, the Dollar Revolving Commitments and the Multicurrency Revolving Commitments.

“Compliance Certificate” means a fully completed and duly executed certificate in the form of Exhibit C, together with a Covenant Compliance Worksheet.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated EBITDA” means, for any Reference Period, the aggregate of (i) Consolidated Net Income for such period, plus (ii) the sum of (A) interest expense, (B) federal, state, local and other income taxes, (C) depreciation and amortization expense, (D) fees and integration, restructuring and severance expenses and charges incurred during such period in connection with any Acquisition or Asset Disposition consummated no more than six months prior to the beginning of such Reference Period not to exceed five percent of Consolidated EBITDA for such Reference Period (calculated without giving effect to this clause (D)), (E) noncash charges (including stock based compensation and any impairment charge or write-off or write-down of goodwill or other intangible assets), (F) extraordinary losses and (G) all losses during such period resulting from any asset disposition outside the ordinary course of business, all to the extent deducted in the calculation of Consolidated Net Income for such Reference Period and all calculated in accordance with GAAP, minus (iii) the sum of (A) extraordinary gains or income, (B) all gains during such period resulting from any asset disposition outside the ordinary course of

 

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business, (C) any cash disbursements during such period that relate to noncash charges included in Consolidated EBITDA pursuant to clause (ii)(E) of this definition during such Reference Period or the twelve months preceding such Reference Period and (D) any noncash gains for such period that represent the reversal of any accrual, or the reversal of any cash reserves, that relates to charges included in Consolidated EBITDA pursuant to clause (ii)(D) or (ii)(E) of this definition during such Reference Period or the twelve months preceding such Reference Period, all to the extent included in the calculation of Consolidated Net Income for such period and all calculated in accordance with GAAP.

“Consolidated Net Income” means, for any Reference Period, net income (or loss) for the Parent Borrower and its Subsidiaries for such Reference Period, determined on a consolidated basis in accordance with GAAP (after deduction for minority interests); provided that, in making such determination, there shall be excluded (i) the net income (or loss) of any other Person that is not a Subsidiary of the Parent Borrower (or is accounted for by the Parent Borrower by the equity method of accounting) except to the extent of actual payment of cash dividends or distributions by such Person to the Parent Borrower or any Subsidiary thereof during such period, (ii) the net income of any Subsidiary of the Parent Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such net income is not at the time permitted by operation of the terms of its charter, certificate of incorporation or formation or other constituent document or any agreement or instrument (other than a Credit Document) or any judgment, decree, order, statute, rule or government regulation applicable to such Subsidiary (provided that there shall not be excluded from Consolidated Net Income such part of net income that is used or designated as being available to satisfy regulatory capital or liquidity requirements imposed on any Subsidiary of the Parent Borrower by any Governmental Authority or pursuant to any decree, order, statute, rule or government regulation) and (iii) without duplication of other deductions or exclusions, any payments made during such Reference Period by any Subsidiaries of the Parent Borrower of profit sharing entitlements, rebates, incentives, partnership distributions or similar entitlements.

“Consolidated Net Worth” means, as of any date of determination, the consolidated stockholders’ equity of the Parent Borrower and its Subsidiaries, determined in accordance with GAAP.

“Consolidated Total Funded Debt” means, as of any date of determination, the aggregate principal amount of all Indebtedness of the Parent Borrower and its Subsidiaries as of such date, determined on a consolidated basis in accordance with GAAP.

“Control” means, with respect to any Person, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled” and “Controlling” have correlative meanings.

“Covenant Compliance Worksheet” means a fully completed worksheet in the form of Attachment A to Exhibit C.

 

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“Credit Documents” means this Agreement, the Notes, the Letters of Credit, the Fee Letters, each Subsidiary Guaranty, the Ineligible Assignees Letter Agreement, each Compliance Certificate, each Notice of Borrowing, each Notice of Swingline Borrowing and each Letter of Credit Notice now or hereafter executed and delivered to the Administrative Agent or any Lender by or on behalf of athe Borrower or any Guarantor with respect to this Agreement.

“Credit Parties” means the BorrowersBorrower and the Guarantors.

“Currency” means Dollars or any Foreign Currency.

“Debt Rating” shall have the meaning given to such term in the definition of Applicable Percentage.

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

“Default” means any event or condition that, with the passage of time or giving of notice, or both, would constitute an Event of Default.

“Defaulting Lender” means, subject to Section 2.21(b), any Lender that (i) has failed to (A) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Parent Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (B) pay to the Administrative Agent, the Issuing Lender, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (ii) has notified athe Borrower, the Administrative Agent, the Issuing Lender or any Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (iii) has failed, within three Business Days after written request by the Administrative Agent or athe Borrower, to confirm in writing to the Administrative Agent and suchthe Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon receipt of such written confirmation by the Administrative Agent and suchthe Borrower), or (iv) has, or has a direct or indirect parent company that has, (A) become the subject of a proceeding under any Debtor Relief Law, or (B) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (C) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such

 

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Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (i) through (iv) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to the Parent Borrower, the Issuing Lender, each Swingline Lender and each Lender.

“Designated Person” means any Person listed on a Sanctions List.

“Dollar L/C Commitment” means the obligation of the Issuing Lender to issue Dollar Letters of Credit in an aggregate amount agreed to by the Issuing Lender in its sole and absolute discretion. For the avoidance of doubt, unless and until otherwise agreed to by the Issuing Lender in its sole and absolute discretion, the Dollar L/C Commitment shall be zero.

“Dollar Amount” means, at any time, (i) with respect to an amount denominated in Dollars, such amount or (ii) with respect to an amount denominated in a Foreign Currency, an equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate for the purchase of Dollars with such Foreign Currency.

“Dollar Letter of Credit” has the meaning given to such term in Section 2.19(a).

“Dollar Letter of Credit Exposure” means, with respect to any Dollar Revolving Lender at any time, such Lender’s ratable share (based on the proportion that its Dollar Revolving Commitment bears to the aggregate Dollar Revolving Commitments at such time, or if the Dollar Revolving Commitments have been terminated, based upon the proportion that its Dollar Revolving Commitment bore to the aggregate Dollar Revolving Commitments immediately prior to such termination thereof, giving effect to any subsequent assignments) of the sum of (i) the aggregate Stated Amount of all Dollar Letters of Credit outstanding at such time and (ii) the aggregate amount of all Dollar Reimbursement Obligations outstanding at such time.

“Dollar Reimbursement Obligation” has the meaning given to such term in Section 2.19(d).

“Dollar Revolving Commitment” means, with respect to any Dollar Revolving Lender at any time, the commitment of such Lender to make Dollar Revolving Loans, Dollar Swingline Loans (if such Lender has agreed to make Dollar Swingline Loans) and participate in Dollar Letters of Credit and Dollar Swingline Loans in an aggregate principal amount at any time outstanding up to the amount set forth opposite such Lender’s name on Schedule 1.1(a) under the caption “Dollar Revolving Commitment” or, if such Lender has entered into one or more Assignment and Assumptions, the amount set forth for such Lender at such time in the Register maintained by the Administrative Agent pursuant to Section 10.6(c) as such Lender’s “Dollar Revolving Commitment,” in either case, as such amount may be reduced at or prior to such time pursuant to the terms hereof or increased from time to time pursuant to Section 2.20.

 

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“Dollar Revolving Credit Exposure” means, with respect to any Dollar Revolving Lender at any time, the sum of (i) the aggregate principal amount of all Dollar Revolving Loans and Dollar Swingline Loans made by such Lender that are outstanding at such time, (ii) such Lender’s Dollar Swingline Exposure (disregarding such Lender’s Dollar Swingline Exposure in respect of any Dollar Swingline Loans made by such Lender) at such time and (iii) such Lender’s Dollar Letter of Credit Exposure at such time.

“Dollar Revolving Lender” means each Person listed on Schedule 1.1(a) as having a Dollar Revolving Commitment and each other Person that becomes a “Dollar Revolving Lender” hereunder pursuant to Section 2.18(a), 2.20 or 10.6, and their respective successors and assigns.

“Dollar Revolving Loan” means any Revolving Loan made by a Dollar Revolving Lender pursuant to Section 2.1(a) denominated in Dollars.

“Dollar Revolving Note” means, with respect to any Dollar Revolving Lender requesting the same, the promissory note of the Parent Borrower in favor of such Dollar Revolving Lender evidencing the Dollar Revolving Loans made by such Lender pursuant to Section 2.1(a), in substantially the form of Exhibit A-1, together with any amendments, modifications and supplements thereto, substitutions therefor and restatements thereof.

“Dollar Swingline Exposure” means, with respect to any Dollar Revolving Lender at any time, its maximum aggregate liability to both make Refunded Swingline Loans pursuant to Section 2.2(e) to refund, and to purchase participations pursuant to Section 2.2(f) in, Dollar Swingline Loans that are outstanding at such time.

“Dollar Swingline Lender” means any Dollar Revolving Lender to the extent it has agreed in its sole discretion to act as a “Dollar Swingline Lender” hereunder at such time and that has been approved in writing by the Parent Borrower and the Administrative Agent (such approval by the Administrative Agent not to be unreasonably withheld or delayed), and their respective successors and permitted assigns.

“Dollar Swingline Loans” has the meaning set forth in Section 2.1(c).

“Dollar Swingline Note” means, if requested by any Dollar Swingline Lender, the promissory note of the Parent Borrower in favor of such Dollar Swingline Lender evidencing the Dollar Swingline Loans made by such Dollar Swingline Lender pursuant to Section 2.1(c), in substantially the form of Exhibit A-3, together with any amendments, modifications and supplements thereto, substitutions therefor and restatements thereof.

“Dollars” or “$” means dollars of the United States of America.

“Domestic Subsidiary” means a Subsidiary incorporated or otherwise organized or existing under the laws of the United States, any state thereof or the District of Columbia, other than any such Subsidiary (i) of a controlled foreign corporation within the meaning of Section 957 of the Code (a “CFC”) or (ii) that has no material assets other than Capital Stock of one or more Foreign Subsidiaries that are CFCs.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

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

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

“EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro that apply generally in the European Union.

“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, allegations, notices of noncompliance or violation, investigations by a Governmental Authority, or proceedings (including administrative, regulatory and judicial proceedings) relating in any way to any Hazardous Substance, any actual or alleged violation of or liability under any Environmental Law or any permit issued, or any approval given, under any Environmental Law (collectively, “Claims”), including (i) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from any Hazardous Substance or arising from alleged injury or threat of injury to human health or the environment.

“Environmental Laws” means any and all federal, state and local laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, rules of common law and orders of courts or Governmental Authorities, relating to the protection of human health, occupational safety with respect to exposure to Hazardous Substances, or the environment, now or hereafter in effect, including requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Substances.

“ERISA” means the Employee Retirement Income Security Act of 1974, and any successor statute, and all rules and regulations from time to time promulgated thereunder.

“ERISA Affiliate” means any Person (including any trade or business, whether or not incorporated) deemed to be under “common control” with, or a member of the same “controlled group” as, the Parent Borrower or any of its Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

“ERISA Event” means any of the following: (i) a “reportable event” as defined in Section 4043(c) of ERISA with respect to a Plan and, if a Credit Party or an ERISA Affiliate has received notice, a Multiemployer Plan, for which the requirement to give notice has not been waived by the PBGC (provided however, that a failure to meet the minimum funding standard of Section 412 of the Code shall be considered a “reportable event” regardless of the issuance of any waiver), (ii) the application by a Credit Party or an ERISA Affiliate for a funding waiver pursuant to Section 412 of

 

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the Code, (iii) the incurrence by a Credit Party or an ERISA Affiliate of any Withdrawal Liability, or the receipt by a Credit Party or an ERISA Affiliate of notice from a 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 of ERISA, (iv) the distribution by a Credit Party or an ERISA Affiliate under Section 4041 of ERISA of a notice of intent to terminate any Plan or the taking of any action to terminate any Plan, (v) the commencement of proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or (vi) the imposition of any Lien upon any assets of a Credit Party or an ERISA Affiliate as a result of any alleged failure to comply with the Code or ERISA with respect to any Plan.

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

“Euro” or “€” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.

“Event of Default” has the meaning given to such term in Section 8.1.

“Exchange Act” means the Securities Exchange Act of 1934, and any successor statute, and all rules and regulations from time to time promulgated thereunder.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by net income, profits, net worth or capital, franchise Taxes, and branch profits or similar Taxes (in each case, however denominated), in each case, (A) imposed by the United States (or any political subdivision or taxing authority thereof or therein) or as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision or taxing authority thereof or therein) or (B) that are Other Connection Taxes, (ii) any withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in such Loan or Commitment (other than pursuant to an assignment requested by the Parent Borrower under Section 2.18) or (B) such Lender changes its Lending Office, except in each case to the extent that (x) pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office or (y) the Subsidiary Borrower shall have failed to comply with its obligations under Section 2.17(i)(ii), (iii) Taxes attributable to such Recipient’s failure or inability to comply with Section 2.16(g), (iv) any backup withholding Taxes, and (v) any Taxes imposed under FATCA.

“Existing Letters of Credit” means those letters of credit set forth on Schedule 1.1(b) and continued under this Agreement as Dollar Letters of Credit issued by the Issuing Lender pursuant to Section 2.19.

“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 and any intergovernmental agreements entered into in respect of any of the foregoing.

 

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“Federal Funds Rate” means, for any period, a fluctuating per annum interest rate (rounded upwards, if necessary, to the nearest 1/100 of one percentage point) equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding 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 rate for such day on such transactions charged to the Administrative Agent. Notwithstanding the foregoing, if any determination of any rate described in this definition would result in the Federal Funds Rate being less than zero, then such rate shall be deemed to be zero.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

“Fee Letters” means the Joint Fee Letter, the BofA Fee Letter and the Wells Fargo Fee Letter.

“Fifth Amendment” means that certain Fifth Amendment to Credit Agreement, dated as of August 18, 2017, among the Credit Parties, the Administrative Agent and the Lenders party thereto.

“Fifth Amendment Consenting Lender” means, as of any date of determination, (a) each Lender that was a Lender immediately prior to the Fifth Amendment Effective Date and that has delivered an executed counterpart to the Fifth Amendment or has otherwise provided in writing its consent to the Fifth Amendment and (b) any Person that becomes a Lender on or after the Fifth Amendment Effective Date, or in connection with the Fifth Amendment, whether pursuant the terms of the Fifth Amendment, Section 2.18(a), Section 2.20, Section 10.6 hereof or otherwise.

“Fifth Amendment Effective Date” means August 18, 2017.

“Fifth Amendment Non-Consenting Lender” means, as of any date of determination, each Lender that was a Lender immediately prior the Fifth Amendment Effective Date and is not a Fifth Amendment Consenting Lender.

“Final Maturity Date” means the fifth anniversary of the ThirdFifth Amendment Effective Date; provided, however, that, if such date is a not a Business Day, then the Final Maturity Date shall be the immediately preceding Business Day.

“Final Termination Date” means the fifth anniversary of the ThirdFifth Amendment Effective Date or such earlier date of termination of the Commitments pursuant to Section 2.5 or 8.2.8.2.

“Financial Officer” means, with respect to any Person, the chief financial officer, vice president-finance, principal accounting officer or treasurer of such Person.

“fiscal quarter” or “FQ” means a fiscal quarter of the Parent Borrower and its Subsidiaries.

 

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“fiscal year” or “FY” means a fiscal year of the Parent Borrower and its Subsidiaries.

“Foreign Currency” means Euro, Sterling, Canadian Dollars or Japanese Yen.

“Foreign Currency Equivalent” means, on any date of determination, with respect to an amount denominated in Dollars, the equivalent amount thereof in the applicable Foreign Currency that would be required to purchase such amount of Dollars on such date of determination, based upon the Spot Rate.

“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction outside of the United States.

“Foreign Subsidiary” means any Subsidiary of the Parent Borrower that is not a Domestic Subsidiary.

“Fronting Exposure” means at any time there is a Defaulting Lender, (i) with respect to any Issuing Lender, such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any reallocation pursuant to Section 2.21(a)(iv) and the posting of any Cash Collateral in accordance with Section 2.21(a)(v)), and (ii) with respect to the Swingline Lenders, such Defaulting Lender’s Swingline Exposure (after giving effect to any reallocation pursuant to Section 2.21(a)(iv) and the prepayment of any Swingline Loans in accordance with Section 2.21(a)(v)).

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

“GAAP” means generally accepted accounting principles in the United States of America, as set forth in the statements, opinions and pronouncements of the Accounting Principles Board, the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, consistently applied and maintained, as in effect from time to time (subject to the provisions of Section 1.2).

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

“Guarantor” means NYSE and any other Person that guarantees the Obligations (including the Parent Borrower as a guarantor under Article XI).

“Guaranty Fund” means any fund, deposits or pledged (or transferred) assets, including initial, original, variation, settlement, delivery or mark-to-market margin, buyer’s security or seller’s security, in any case whether contingent or actual (or similar arrangement), set up, maintained or established by (i) ICE Clear US, (ii) ICE Clear Europe, (iii) The Clearing Corporation, (iv) ICE Clear Credit, (v) ICE Clear Canada, and (vi) ICE Clear Netherlands, (vii) ICE Clear Singapore and (viii) such other Clearing House Subsidiaries, in each case in which its

 

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members (or other Persons) make contributions, make deposits, set aside funds, pledge (or transfer) assets, grant security interests in assets or transfer title to margin or other collateral assets or the like to, among other things, enable the satisfaction (whether in whole or in part) of the obligations of the relevant Clearing House Subsidiary or upon the default (or other specified event) of a clearing member or the like.

“Guaranty Obligation” means, with respect to any Person, any direct or indirect liability of such Person with respect to any Indebtedness, liability or other obligation (the “primary obligation”) of another Person (the “primary obligor”), whether or not contingent, (i) to purchase, repurchase or otherwise acquire such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or provide funds (x) for the payment or discharge of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor (including keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements), (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor in respect thereof to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss or failure or inability to perform in respect thereof; provided, however, that, with respect to the Parent Borrower and its Subsidiaries, the term Guaranty Obligation shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guaranty Obligation of any guaranteeing Person hereunder shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made and (b) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guaranty Obligation, unless such primary obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of such Guaranty Obligation shall be such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such guaranteeing Person in good faith.

“Hazardous Substance” means any substance or material meeting any one or more of the following criteria: (i) it is or contains a substance designated as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under any Environmental Law, (ii) it is toxic, explosive, corrosive, ignitable, infectious, radioactive, mutagenic or otherwise hazardous to human health or the environment and is or becomes regulated by any Governmental Authority, (iii) its presence may require investigation or response under any Environmental Law, (iv) it constitutes a nuisance, trespass or health or safety hazard to Persons or neighboring properties, or (v) it is or contains, without limiting the foregoing, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or wastes, crude oil, nuclear fuel, natural gas or synthetic gas.

“Hedge Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided, however, that, with respect to any Clearing House Subsidiary, the term Hedge Agreement shall not include any such transaction with respect to which such entity is a party solely in its capacity as a central counterparty.

 

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“ICE Clear Canada” means ICE Clear Canada, Inc., a Manitoba corporation and an indirect Wholly-Owned Subsidiary of the Parent Borrower.

“ICE Clear Credit” means ICE Clear Credit, LLC, a Delaware limited liability company (formerly ICE Trust U.S. LLC) and a Subsidiary of the Parent Borrower.

“ICE Clear Europe” means ICE Clear Europe Limited, a private limited company incorporated under the laws of England and Wales and an indirect Wholly-Owned Subsidiary of the Parent Borrower.

“ICE Clear US” means ICE Clear U.S., Inc., a New York corporation and an indirect Wholly-Owned Subsidiary of the Parent Borrower (formerly known as New York Clearing Corporation).

“ICE Futures Europe” means ICE Futures Europe, a United Kingdom corporationClear Netherlands” means ICE Clear Netherlands B.V., a private company established in Amsterdam, The Netherlands and an indirect Wholly-Owned Subsidiary of the Parent Borrower.

“IDHC” means Interactive Data Holdings Corporation, a Delaware corporation.ICE Clear Singapore” means ICE Clear Singapore Pte. Ltd., a company incorporated in the Republic of Singapore and an indirect Wholly-Owned Subsidiary of the Borrower.

“IDHC Acquisition” means the Acquisition by the Parent Borrower (or any Subsidiary thereof) of IDHC in accordance with the IDHC Acquisition Agreement.

“IDHC Acquisition Agreement” means the Agreement and Plan of Merger, dated as of October 26, 2015, between the Parent Borrower, Red Merger Sub Inc., IDHC and Igloo Manager Co-Invest, LLC.

“IDHC Acquisition Date” means the date on which the IDHC Acquisition is consummated.

“IDHC Bridge Arrangers” means Wells Fargo Securities, LLC, and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

“IDHC Bridge Facility” means that certain senior unsecured bridge credit facility providing for up to $3,650,000,000 in senior unsecured bridge loans available to the Parent Borrower arranged by the IDHC Bridge Arrangers and used to finance a portion of the consideration paid by the Parent Borrower to consummate the IDHC Acquisition, all as contemplated in that certain Project H2O Commitment Letter, dated as of October 26, 2015, among Wells Fargo, BofA, the IDHC Bridge Arrangers and the Parent Borrower.

“IDHC Transactions” means, collectively, (a) the IDHC Acquisition, (b) the issuance or incurrence of Indebtedness (including the making of Loans) to finance a portion of the consideration paid by the Parent Borrower to consummate the IDHC Acquisition, (c) the issuance of Capital Stock of the Parent Borrower to the equityholders of IDHC as consideration for the

 

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IDHC Acquisition, (d) the refinancing of certain existing Indebtedness of IDHC and its Subsidiaries, (e) the preparation, execution and delivery of the Second Amendment of this Agreement and (f) the payment of fees, commissions and expenses in connection with each of the foregoing.

“Increasing Lender” has the meaning set forth in Section 2.20(a).

“Indebtedness” means, with respect to any Person (without duplication), (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments, or upon which interest payments are customarily made, (iii) the aggregate amount (but only to the extent drawn and not reimbursed) of all surety bonds, letters of credit and bankers’ acceptances issued or created for the account of such Person, (iv) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi) all Guaranty Obligations of such Person with respect to Indebtedness of another Person and (vii) all indebtedness of the types referred to in clauses (i) through (vi) above (A) of any partnership or unincorporated joint venture in which such Person is a general partner or joint venturer to the extent such Person is liable therefor or (B) secured by any Lien on any property or asset owned or held by such Person regardless of whether or not the indebtedness secured thereby shall have been incurred or assumed by such Person or is nonrecourse to the credit of such Person, the amount thereof being equal to the lesser of (x) the amount secured by such Lien and (y) the fair market value of the property or assets subject to such Lien as determined in good faith by such Person; provided, however, that, with respect to any Clearing House Subsidiary, the term Indebtedness shall not include any transaction with respect to which such entity is a party solely in its capacity as a central counterparty and, with respect to any Regulated Subsidiary that acts as a swap execution facility, multilateral trading facility, systematic internalizer or organized trading facility and which offers a settlement service for transactions done on such facility or on the facility of another such Regulated Subsidiary, the term Indebtedness shall not include any transaction with respect to which such entity is a party solely in the capacity of offering such a settlement service.

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

“Ineligible Assignees” means those certain Persons set forth in the Ineligible Assignees Letter Agreement and all Affiliates thereof.

“Ineligible Assignees Letter Agreement” means that certain letter agreement, dated as of the Closing Date, between the Parent Borrower and the Primary Administrative Agent, as such letter agreement may be amended or modified from time to time with the consent of the Parent Borrower and, in accordance with Section 9.10(b), the Administrative Agent.

“Interest Period” has the meaning given to such term in Section 2.10.

“IRS” means the United States Internal Revenue Service.

 

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“Issuing Lender” means Wells Fargo in its capacity as issuer of the Letters of Credit, and its successors in such capacity.

“Joint Fee Letter” means the letter from Wells Fargo, Wells Fargo Securities, LLC, BofA and Merrill Lynch, Pierce, Fenner & Smith Incorporated, to the Parent Borrower, dated October 29, 2015, relating to certain fees payable by the Parent Borrower in respect of the transactions contemplated by this Agreement.

“Legal Reservations” means:

(a) the principle that equitable remedies (or remedies that are analogous to equitable remedies in other jurisdictions) may be granted or refused at the discretion of a court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganization, court schemes, moratoria, administration, examinership, reorganization and other laws generally affecting the rights of creditors;

(b) the time barring of claims under the UK Limitation Act 1980 and the Foreign Limitation Periods Act 1984 and other applicable statutes of limitation, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defenses of set-off or counterclaim;

(c) similar principles, rights and defenses under the laws of any other jurisdiction to which a Borrower or its assets may be subject; and

(d) any other matters which are set out as qualifications or reservations as to matters of law of general application in the legal opinions provided to the Administrative Agent and the Lenders under the Credit Documents.

“Lender Parties” has the meaning given to such term in Section 10.11.

“Lenders” means, collectively, the Revolving Lenders and, unless the context requires otherwise, the Swingline Lenders.

“Lending Office” means, with respect to any Lender, the office of such Lender designated as such in such Lender’s Administrative Questionnaire or in connection with an Assignment and Assumption, or such other office as may be otherwise designated in writing from time to time by such Lender to the Parent Borrower and the Administrative Agent. A Lender may designate separate Lending Offices as provided in the foregoing sentence for the purposes of making or maintaining different Types and Classes of Loans, and, with respect to LIBOR Loans, such office may be a domestic or foreign branch or Affiliate of such Lender.

“Letter of Credit Exposure” means, with respect to any Lender at any time, such Lender’s Dollar Letter of Credit Exposure or Multicurrency Letter of Credit Exposure, or both, as the context requires.

“Letter of Credit Maturity Date” means the fifth Business Day prior to the Final Maturity Date.

 

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“Letter of Credit Notice” has the meaning given to such term in Section 2.19(b).

“Letters of Credit” means any or all of the Dollar Letters of Credit and Multicurrency Letters of Credit.

“LIBOR Loan” means, at any time, any Loan that bears interest at such time at the applicable Adjusted LIBOR Rate.

“LIBOR Market Index Rate” means, for any date, the rate for one month deposits in the applicable Currency as reported on Reuters Screen LIBOR01 Page as of 11:00 a.m. London time, on such day, or if such day is not a London Banking Day, then the immediately preceding London Banking Day (or if not so reported, then as reasonably determined by the Administrative Agent from another recognized source or interbank quotation).

“LIBOR Market Index Rate Loan” means any Swingline Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Market Index Rate.

“LIBOR Rate” means:

(i) with respect to each LIBOR Loan denominated in any Currency (other than Canadian Dollars) comprising part of the same Borrowing for any Interest Period, an interest rate per annum obtained by dividing (A) (y) the London Interbank Offered Rate (or a successor rate which is approved by the Administrative Agent, in consultation with the Parent Borrower) appearing on Reuters Screen LIBOR01 Page (or other commercially available source providing quotations of such rate as selected by the Administrative Agent, in consultation with the Parent Borrower, from time to time) for deposits denominated in such Currency or (z) if no such rate is available, the rate of interest determined by the Administrative Agent to be the rate or the arithmetic mean of rates at which deposits in such Currency in immediately available funds are offered to first-tier banks (as determined in consultation with the Parent Borrower) in the London interbank Eurodollar market, in each case under (y) and (z) above at approximately 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period for a period substantially equal to such Interest Period, by (B) the amount equal to 1.00 minus the Reserve Requirement (expressed as a decimal) for such Interest Period; and

(ii) with respect to each LIBOR Loan denominated in Canadian Dollars comprising part of the same Borrowing for any Interest Period, an interest rate per annum determined by the Administrative Agent on the basis of an average rate applicable to Canadian Dollar bankers’ acceptances having a maturity comparable to the applicable Interest Period appearing on the “Reuters Screen CDOR Page” (as defined in the International Swap Dealer Association, Inc.’s definitions), or other commercially available source providing quotations of such rate as selected by the Administrative Agent, in consultation with the Parent Borrower, from time to time, at approximately 10:00 a.m., Toronto time, on the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business Day); provided that if, for any reason, such rate does not appear on the Reuters Screen CDOR Page on such day, then the “LIBOR Rate” on such day for any LIBOR Loan denominated in Canadian Dollars shall be calculated as the rate (rounded upwards to the nearest basis point) quoted by The Toronto-Dominion Bank (or its successors or assigns or such other bank listed in Schedule I to the

 

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Bank Act (Canada) as the Administrative Agent may from time to time designate) as its discount rate for the purchase of Canadian Dollar bankers’ acceptances in an amount substantially equal to such LIBOR Loan with a term comparable to such Interest Period at approximately 10:00 a.m., Toronto time, on the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business Day); and

(iii) for any interest rate calculation with respect to a Base Rate Loan, the rate of interest per annum determined on the basis of the London Interbank Offered Rate (or a successor rate which is approved by the Administrative Agent, in consultation with the Parent Borrower) for U.S. Dollar deposits for delivery on the date in question for a one month term beginning on that date which appears on Reuters Screen LIBOR01 Page (or other commercially available source providing quotations of such rate as selected by the Administrative Agent, in consultation with the Parent Borrower, from time to time) at approximately 11:00 a.m., London time, on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or other commercially available source providing quotations of such rate as selected by the Administrative Agent from time to time), then “LIBOR” for such Base Rate Loan shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which U.S. Dollar deposits would be offered by first class banks (as determined in consultation with the Parent Borrower) in the London interbank market to the Administrative Agent at approximately 11:00 a.m., London time, on such date of determination for delivery on the date in question for a one month term.

Notwithstanding the foregoing, if any determination of any rate described in this definition would result in the LIBOR Rate being less than zero, then such rate shall be deemed to be zero.

Each of the Administrative Agent and the Lenders acknowledges and agrees that (1) as of the date hereof, ICE Benchmark Administration Ltd. is a subsidiary of the Parent Borrower, and (2) neither the Administrative Agent nor any Lender, solely in their respective capacities as such under this Agreement, shall have any direct claim under this Agreement against anythe Borrower on account of any action taken by ICE Benchmark Administration Ltd. in its capacity as a provider of any quotations or rates referred to this definition.

“Lien” means any mortgage, pledge, hypothecation, assignment, security interest, lien (statutory or otherwise), charge or other encumbrance of any nature, whether voluntary or involuntary, including the interest of any vendor or lessor under any conditional sale agreement, title retention agreement, Capital Lease or any other lease or arrangement having substantially the same effect as any of the foregoing; provided that, with respect to the assets of any Clearing House Subsidiary, no rights of setoff, deduction, netting, equity of redemption or offset of any member (or similar Person) of such Clearing House Subsidiary shall constitute a Lien hereunder.

“Loans” means any or all of the Revolving Loans and the Swingline Loans.

 

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“Local Time” means (i) in the case of Multicurrency Revolving Loans or Multicurrency Swingline Loans, in each case denominated in a Foreign Currency, London time, and (ii) in all other cases, Charlotte, North Carolina time.

“Margin Stock” has the meaning given to such term in Regulation U.

“Material Adverse Effect” means a material adverse effect upon (i) the business, assets, financial condition or results of operations of the Parent Borrower and its Subsidiaries, taken as a whole, (ii) the ability of anythe Borrower or any Guarantor to perform their respective obligations under this Agreement or any of the other Credit Documents or (iii) the legality, validity or enforceability of this Agreement or any of the other Credit Documents or the rights and remedies of the Administrative Agent and the Lenders hereunder and thereunder.

“Material Subsidiary” means, at any time, any Subsidiary of the Parent Borrower that is a “significant subsidiary” as defined in Rule 1-102(w) of Regulation S-X under the Securities Act.

“Maturity Date” means (a) with respect to each ThirdFifth Amendment Consenting Lender, the Final Maturity Date and (b) with respect to each ThirdFifth Amendment Non-Consenting Lender, the Original Maturity Date.

“Moody’s” means Moody’s Investor Service.

“Multicurrency Agent” means (a) during a Wells Fargo Availability Period, Wells Fargo Bank, National Association, London Branch, (b) during a Wells Fargo Unavailability Period, the Backup Administrative Agent, and (c) and any other financial institution designated by the Primary Administrative Agent or the Backup Administrative Agent, as applicable (and reasonably acceptable to the Parent Borrower), to act as its sub-agent and correspondent hereunder in respect of the disbursement and payment of Multicurrency Revolving Loans denominated in a Foreign Currency and Multicurrency Swingline Loans.

“Multicurrency L/C Commitment” means the obligation of the Issuing Lender to issue Multicurrency Letters of Credit in an aggregate Dollar Amount equal to $75,000,000 or such greater amount agreed to by the Issuing Lender in its sole and absolute discretion.

“Multicurrency Letter of Credit” has the meaning given to such term in Section 2.19(a).

“Multicurrency Letter of Credit Exposure” means, with respect to any Multicurrency Revolving Lender at any time, such Lender’s ratable share (based on the proportion that its Multicurrency Revolving Commitment bears to the aggregate Multicurrency Revolving Commitments at such time, or if the Multicurrency Revolving Commitments have been terminated, based upon the proportion that its Multicurrency Revolving Commitment bore to the aggregate Multicurrency Revolving Commitments immediately prior to such termination thereof, giving effect to any subsequent assignments) of the sum of (i) the aggregate Stated Amount of all Multicurrency Letters of Credit outstanding at such time and (ii) the aggregate amount of all Multicurrency Reimbursement Obligations outstanding at such time.

“Multicurrency Reimbursement Obligation” has the meaning given to such term in Section 2.19(d).

 

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“Multicurrency Revolving Commitment” means, with respect to any Multicurrency Revolving Lender at any time, the commitment of such Lender to make Multicurrency Revolving Loans, Multicurrency Swingline Loans and participate in Multicurrency Letters of Credit and Multicurrency Swingline Loans in an aggregate principal amount at any time outstanding up to the amount set forth opposite such Lender’s name on Schedule 1.1(a) under the caption “Multicurrency Revolving Commitment” or, if such Lender has entered into one or more Assignment and Assumptions, the amount set forth for such Lender at such time in the Register maintained by the Administrative Agent pursuant to Section 10.6(c) as such Lender’s “Multicurrency Revolving Commitment,” in either case, as such amount may be reduced at or prior to such time pursuant to the terms hereof or increased from time to time pursuant to Section 2.20.

“Multicurrency Revolving Credit Exposure” means, with respect to any Multicurrency Revolving Lender at any time, the sum of (i) the aggregate principal Dollar Amount of all Multicurrency Revolving Loans and Multicurrency Swingline Loans made by such Lender that are outstanding at such time, (ii) the Dollar Amount of such Lender’s Multicurrency Swingline Exposure at such time (disregarding such Lender’s Multicurrency Swingline Exposure in respect of any Multicurrency Swingline Loans made by such Lender) and (iii) such Lender’s Multicurrency Letter of Credit Exposure at such time.

“Multicurrency Revolving Lender” means each Person listed on Schedule 1.1(a) as having a Multicurrency Revolving Commitment and each other Person that becomes a “Multicurrency Revolving Lender” hereunder pursuant to Section 2.18(a), 2.20 or 10.6, and their respective successors and assigns.

“Multicurrency Revolving Loan” means any Revolving Loan made by a Multicurrency Revolving Lender pursuant to Section 2.1(b) denominated in any Currency.

“Multicurrency Revolving Note” means, with respect to any Multicurrency Revolving Lender requesting the same, the promissory note of eachthe Borrower in favor of such Multicurrency Revolving Lender evidencing the Multicurrency Revolving Loans made by such Lender pursuant to Section 2.1(b), in substantially the form of Exhibit A-2, together with any amendments, modifications and supplements thereto, substitutions therefor and restatements thereof.

“Multicurrency Swingline Exposure” means, with respect to any Multicurrency Revolving Lender at any time, its maximum aggregate liability to make Refunded Swingline Loans pursuant to Section 2.2(e) to refund, or to purchase participations pursuant to Section 2.2(f) in, Multicurrency Swingline Loans that are outstanding at such time.

“Multicurrency Swingline Lender” means (a) Wells Fargo and BofA and (b) any other Multicurrency Revolving Lender to the extent it has agreed in its sole discretion to act as a “Multicurrency Swingline Lender” hereunder at such time and that has been approved in writing by the Parent Borrower and the Administrative Agent (such approval by the Administrative Agent not to be unreasonably withheld or delayed), and each of their respective successors and permitted assigns.

 

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“Multicurrency Swingline Loan” has the meaning set forth in Section 2.1(e).

“Multicurrency Swingline Note” means, if requested by any Multicurrency Swingline Lender, the promissory note of eachthe Borrower in favor of such Multicurrency Swingline Lender evidencing the Multicurrency Swingline Loans made by such Multicurrency Swingline Lender pursuant to Section 2.1(d), in substantially the form of Exhibit A-4, together with any amendments, modifications and supplements thereto, substitutions therefor and restatements thereof.

“Multiemployer Plan” means any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA to which the Parent Borrower or any ERISA Affiliate makes, is making or is obligated to make contributions or, during the immediately preceding five plan years, has made or been obligated to make contributions.

“Non-Consenting Lender” means any Lender that does not approve a consent, waiver or amendment to any Credit Document requested by the BorrowersBorrower or the Administrative Agent that (i) requires the approval of all Lenders (or all Lenders directly affected thereby) in accordance with the terms of Section 10.5 and (ii) has been approved by the Required Lenders.

“Non-Defaulting Lender” means any Lender that is not a Defaulting Lender.

“Non-U.S. Pension Plan” means any plan, scheme, fund (including any superannuation fund) or other similar program established, sponsored or maintained outside the United States by the Parent Borrower or any one or more of its Subsidiaries primarily for the benefit of employees of the Parent Borrower or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

“Notes” means any or all of the Dollar Revolving Notes, the Multicurrency Revolving Notes, the Dollar Swingline Notes and the Multicurrency Swingline Notes.

“Notice of Borrowing” has the meaning given to such term in Section 2.2(b).

“Notice of Conversion/Continuation” has the meaning given to such term in Section 2.11(b).

“Notice of Swingline Borrowing” has the meaning given to such term in Section 2.2(d).

“NYSE” means NYSE Holdings LLC, a Delaware limited liability company.

“Obligations” means all principal of and interest (including interest accruing after the filing of a petition or commencement of a case by or with respect to athe Borrower seeking relief under any Debtor Relief Laws and any fraudulent transfer and fraudulent conveyance laws, whether or not the claim for such interest is allowed in such proceeding) on the Loans and Reimbursement Obligations, and all fees, expenses, indemnities and other obligations owing, due or payable at any time by athe Borrower or any Guarantor to any Agent, any Lender, the Issuing Lender or any other Person entitled thereto, under this Agreement or any of the other Credit Documents.

 

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“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

“Original Maturity Date” means the fifth anniversary of the ClosingThird Amendment Effective Date; provided, however, that, if such date is a not a Business Day, then the Original Maturity Date shall be the immediately preceding Business Day.¹

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

“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, excluding, in each case, such amounts that result from a Lender’s assignment pursuant to Section 10.6, grant of a participation to a Participant pursuant to Section 10.6(d), transfer or assignment to or designation of a new applicable Lending Office or other office for receiving payments under any Credit Document (collectively, “Assignment Taxes”), except for Assignment Taxes resulting from an assignment that is requested in writing by the Parent Borrower.

“Parent Borrower” has the meaning given to such term in the introductory paragraph hereof.

“Participant” has the meaning given to such term in Section 10.6(d).

“Participant Register” has the meaning given to such term in Section 10.6(f).

“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001), and any successor statute, and all rules and regulations from time to time promulgated thereunder.

“Payment Office” means the office of the Administrative Agent or the Multicurrency Agent designated on Schedule 1.1(a) under the heading “Instructions for wire transfers to the Administrative Agent,” or such other office as the Administrative Agent or the Multicurrency Agent may designate to the Lenders and the Parent Borrower for such purpose from time to time.

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, and any successor thereto.

“Permitted Liens” has the meaning given to such term in Section 7.3.

 

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“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority, Self-Regulatory Organization or other entity.

“Plan” means any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA that is subject to the provisions of Title IV of ERISA (other than a Multiemployer Plan) and to which the Parent Borrower or any ERISA Affiliate has any liability.

“Primary Administrative Agent” means Wells Fargo, in its capacity as Primary Administrative Agent, and its successors and permitted assigns in such capacity.

“Pro Forma Basis” has the meaning given to such term in Section 1.3(c).

“Qualified Acquisition” means any Acquisition consummated after the Fifth Amendment Effective Date that (a) involves the payment of consideration in excess of $1,000,000,000 and (b) has been designated by the Borrower as a “Qualified Acquisition” by written notice to the Administrative Agent received no later than 10 Business Days after the consummation of such Qualified Acquisition.

“Recipient” means (i) the Primary Administrative Agent, (ii) the Backup Administrative Agent, (iii) any Lender or (iv) the Issuing Lender, as applicable.

“Reference Period” with respect to any date of determination, means (except as may be otherwise expressly provided herein) the period of twelve consecutive fiscal months of the Parent Borrower immediately preceding such date or, if such date is the last day of a fiscal quarter, the period of four consecutive fiscal quarters ending on such date.

“Refunded Swingline Loans” has the meaning given to such term in Section 2.2(e).

“Register” has the meaning given to such term in Section 10.6(c).

“Regulated Subsidiary” means (i) any Subsidiary that is registered as a broker dealer pursuant to Section 15 of the Exchange Act or that is regulated as a broker dealer or underwriter under any foreign securities law, (ii) any Subsidiary regulated as an insurance company, exchange, swap execution facility, swap data repository, clearing house, securities depository, settlement system, multilateral trading facility, trade repository, systematic internalizer or organized trading facility and (iii) any Subsidiary whose dividends may be restricted, other activities undertaken by such Subsidiary may be limited or other regulatory actions with respect to such Subsidiary may be taken, in each case by any applicable Governmental Authority in the event that such Subsidiary does not maintain capital at the level required by such applicable Governmental Authority.

“Regulations T, U and X” means Regulations T, U and X, respectively, of the Federal Reserve Board, and any successor regulations.

“Regulatory Capital Assets” means assets that are held due to regulatory capital or regulatory liquidity requirements of any Regulated Subsidiary from time to time, as set forth on the Compliance Certificate most recently delivered in accordance with Section 5.2(a) or another written notice (in form and detail reasonably satisfactory to the Administrative Agent) delivered to the Administrative Agent (it being understood that such assets existing as of the Closing Date are reflected on the consolidated balance sheet of the Parent Borrower and its Subsidiaries as part of short-term restricted cash and investments or long-term restricted cash).

 

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“Reimbursement Obligation” has the meaning given to such term in Section 2.19(d).

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

“Required Dollar Revolving Lenders” means, at any time, the Dollar Revolving Lenders holding outstanding Dollar Revolving Credit Exposure and Unutilized Dollar Revolving Commitments (or, after the termination of the Dollar Revolving Commitments, outstanding Dollar Revolving Credit Exposure) representing at least a majority of the aggregate, at such time, of all outstanding Dollar Revolving Credit Exposure and Unutilized Dollar Revolving Commitments (or, after the termination of the Dollar Revolving Commitments, the aggregate at such time of all outstanding Dollar Revolving Credit Exposure); provided that the Dollar Revolving Commitment of, and the portion of the outstanding Dollar Revolving Credit Exposure held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Dollar Revolving Lenders.

“Required Lenders” means, at any time, the Lenders holding Revolving Credit Exposures and Unutilized Commitments (or, after the termination of the Commitments, Revolving Credit Exposures) representing at least a majority of the aggregate, at such time, of all outstanding Revolving Credit Exposures and Unutilized Commitments (or, after the termination of the Commitments, the aggregate at such time of all outstanding Revolving Credit Exposures); provided that the Commitment of, and the portion of the outstanding Revolving Credit Exposure held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“Required Multicurrency Revolving Lenders” means, at any time, the Multicurrency Revolving Lenders holding outstanding Multicurrency Revolving Credit Exposure and Unutilized Multicurrency Revolving Commitments (or, after the termination of the Multicurrency Revolving Commitments, outstanding Multicurrency Revolving Credit Exposure) representing at least a majority of the aggregate, at such time, of all outstanding Multicurrency Revolving Credit Exposure and Unutilized Multicurrency Revolving Commitments (or, after the termination of the Multicurrency Revolving Commitments, the aggregate at such time of all outstanding Multicurrency Revolving Credit Exposure); provided that the Multicurrency Revolving Commitment of, and the portion of the outstanding Multicurrency Revolving Credit Exposure held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Multicurrency Revolving Lenders.

“Required Multicurrency Swingline Lenders” means, at any time, the Multicurrency Swingline Lenders representing at least a majority, at such time, of the aggregate principal amount of all outstanding Multicurrency Swingline Loans; provided that the portion of the aggregate principal amount of outstanding Multicurrency Swingline Loans held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Multicurrency Swingline Lenders.

 

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“Requirement of Law” means, with respect to any Person, the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of such Person, and any statute, law, treaty, rule, regulation, order, decree, writ, injunction, official guidance or determination of any arbitrator or court or other Governmental Authority or any Self-Regulatory Organization, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject or otherwise directly relating to any or all of the transactions expressly contemplated by this Agreement and the other Credit Documents.

“Reserve Requirement” means, with respect to any Interest Period, the reserve percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100^th of 1%) in effect from time to time during such Interest Period, as provided by the Federal Reserve Board, applied for determining the maximum reserve requirements (including basic, supplemental, marginal and emergency reserves) applicable to Wells Fargo under Regulation D with respect to “Eurocurrency liabilities” within the meaning of Regulation D, or under any similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency funding.

“Responsible Officer” means, with respect to any Person, the president, the chief executive officer, the chief financial officer, any executive officer, or any other Financial Officer of such Person, and, with respect to anythe Borrower, any other officer or similar official thereof responsible for the administration of the obligations of suchthe Borrower in respect of this Agreement or any other Credit Document.

“Revaluation Date” means with respect to any Multicurrency Revolving Loan, Multicurrency Swingline Loan or Multicurrency Letter of Credit, each of the following: (i) each date of a Borrowing of a LIBOR Loan denominated in a Foreign Currency or a Multicurrency Swingline Loan, (ii) each date of issuance of a Multicurrency Letter of Credit denominated in a Foreign Currency, (iii) each date of a continuation of a LIBOR Loan denominated in a Foreign Currency, and (iv) such additional dates as the Administrative Agent or the Required Multicurrency Swingline Lenders shall reasonably determine or the Required Multicurrency Revolving Lenders shall reasonably require.

“Revolving Commitments” means, collectively, the Dollar Revolving Commitments and the Multicurrency Revolving Commitments.

“Revolving Credit Exposure” means, with respect to any Revolving Lender at any time, the sum of (i) the aggregate principal Dollar Amount of all Revolving Loans and Swingline Loans made by such Lender that are outstanding at such time, (ii) such Lender’s Swingline Exposure at such time, and (iii) such Lender’s Letter of Credit Exposure at such time.

“Revolving Lenders” means, collectively, the Dollar Revolving Lenders and the Multicurrency Revolving Lenders.

“Revolving Loans” means, collectively, the Dollar Revolving Loans and the Multicurrency Revolving Loans.

 

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“S&P” means Standard & Poor’s Financial Services, LLC, a subsidiary of The McGraw-Hill Companies, Inc.

“Sanctioned Country” means a country or, territory or region (including the government and government instrumentalities of said country or, territory or region) which is presently the target of country-based Sanctions.

“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (i) the U.S. government (including the U.S. Department of State, the U.S. Department of Commerce and OFAC), (ii) the United Nations Security Council, (iii) the European Union or (iv) Her Majesty’s Treasury of the United Kingdom.

“Sanctions List” means any of the lists of specially designated nationals or blocked persons or entities (or equivalent) (i.e., a Designated Person) pursuant to Sanctions held by the U.S. government and administered by OFAC, the U.S. State Department, the U.S. Department of Commerce or the U.S. Department of the Treasury or the United Nations Security Council or any similar list maintained by the European Union, any other EU Member State or any other U.S. government entity.

“Securities Act” means the Securities Act of 1933.

“Self-Regulatory Organization” means any U.S. or foreign commission, board, agency or body that is not a Governmental Authority, but is charged with the supervision or regulation of brokers, dealers, securities underwriting or trading, stock exchanges, clearing houses, commodities exchanges, electronic communication networks, insurance companies or agents, investment companies or investment advisors.

“Spot Rate” for a Currency means the rate determined by the Administrative Agent to be the rate quoted as the spot rate for the purchase of such Currency with another Currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that if such spot rate is not available, the “Spot Rate” shall be determined by reference to a publically available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Parent Borrower, or, in the absence of such an agreement, the Administrative Agent may use any reasonable method it deems appropriate to determine such spot rate, and such determination shall be conclusive absent manifest error.

“Stated Amount” means, with respect to any Letter of Credit at any time, the Dollar Amount of the aggregate amount available to be drawn thereunder at such time (regardless of whether any conditions for drawing could then be met).

“Sterling” or “£” means the lawful money of the United Kingdom.

“Subsidiary” means, with respect to any Person, any corporation or other Person of which more than fifty percent (50%) of the outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors, board of managers or other governing body of such Person, is at the time, directly or indirectly, owned or controlled by such Person and one or more of its other Subsidiaries or a combination thereof (irrespective of whether, at the time, securities of any other class or classes of any such corporation or other Person shall or might have voting power by reason of the happening of any contingency). When used without reference to a parent entity, the term “Subsidiary” shall be deemed to refer to a Subsidiary of the Parent Borrower.

 

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“Subsidiary Borrower” has the meaning given to such term in the introductory paragraph hereof.

“Subsidiary Guarantor” means each Subsidiary which is a party to any Subsidiary Guaranty.

“Subsidiary Guaranty” means, collectively, the Guaranty Agreement, dated as of the Closing Date, made by NYSE in favor of the Administrative Agent and the Lenders, and each other guaranty executed and delivered in accordance with Section 5.9(a).

“Swingline Exposure” means, with respect to any Lender at any time, such Lender’s Dollar Swingline Exposure or Multicurrency Swingline Exposure, or both, as the context requires.

“Swingline Lenders” means, collectively, the Dollar Swingline Lenders and the Multicurrency Swingline Lenders.

“Swingline Loans” has the meaning given to such term in Section 2.1(e).

“Swingline Maturity Date” means the date which is three days prior to the Final Maturity Date; provided, however, that, if such date is a not a Business Day, then the Swingline Maturity Date shall be the immediately preceding Business Day.

“Syndication Agent” means Bank of America, N.A., and its successors in its capacity as syndication agent.

“Taxes” means all present or future taxes, levies, imposts, duties and similar deductions, withholdings, assessments, or other similar charges in the nature of a tax imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Terminating Credit Facilities” has the meaning set forth in Section 3.1(b).

“Termination Date” means, with respect to each Lender, its’ Maturity Date or such earlier date of termination of the Commitments pursuant to Section 2.5 or 8.2.

“The Clearing Corporation” means The Clearing Corporation, a Delaware corporation and a Subsidiary of the Parent Borrower.

“Third Amendment” means that certain Third Amendment to Credit Agreement, dated as of November 13, 2015, among the BorrowersBorrower, ICE Europe Parent Limited, the Administrative Agent and the Lenders party thereto.

“Third Amendment Consenting Lender” means, as of any date of determination, (a) each Lender that was a Lender immediately prior to the Third Amendment Effective Date and that has delivered an executed counterpart to the Third Amendment or has otherwise provided in writing its consent to the Third Amendment and (b) any Person that becomes a Lender on or after the Third Amendment Effective Date, or in connection with the Third Amendment, whether pursuant the terms of the Third Amendment, Section 2.18(a), Section 2.20, Section 10.6 hereof or otherwise.

 

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“Third Amendment Effective Date” means November 13, 2015.

“Third Amendment Non-Consenting Lender” means, as of any date of determination, each Lender that was a Lender immediately prior the Third Amendment Effective Date and is not a Third Amendment Consenting Lender.

“Threshold Amount” means $200,000,000.250,000,000.

“Total Leverage Ratio” means, with respect to any Reference Period, the ratio of (i) Consolidated Total Funded Debt as of the last day of such Reference Period to (ii) Consolidated EBITDA for such Reference Period; provided that Consolidated Total Funded Debt shall not include (x) Indebtedness permitted pursuant to Section 7.2(iv), 7.2(v) or 7.2(vi) except to the extent such Indebtedness has been outstanding, as of such determination date, for more than 45 days since the borrowing thereof or (y) for purposes of determining the Total Leverage Ratio at any time prior to the IDHC Acquisition Date (or the termination of the IDHC Acquisition Agreement),and (y) any Indebtedness incurred or issued by the Parent Borrower on or prior to the IDHC Acquisition Date(1) to repay, prepay, redeem, repurchase, discharge, defease or otherwise refinance other Indebtedness (solely in the amount necessary for such repayment, prepayment, redemption, repurchase, discharge, defeasance or other refinancing) to the extent the proceeds of such Indebtedness are earmarked for such purpose and actually so applied or (2) at any time prior to the date of consummation of an Acquisition (or the termination of the related acquisition agreement), to the extent that the net proceeds of such Indebtedness are held as cash or Cash Equivalents by the Parent Borrower (or any Subsidiary thereof) (whether held in deposit or securities accounts or otherwise) to finance the IDHCsuch Acquisition until the consummation of the IDHCsuch Acquisition (or the termination of the IDHC Acquisition Agreementrelated acquisition agreement) and such proceeds are required to be applied to repay, prepay, redeem, repurchase, discharge or defease such Indebtedness in the event such Acquisition is not consummated (or the related acquisition agreement is terminated).

“Total Voting Power” means, with respect to any Person, the total number of votes which may be cast in the election of directors of such Person at any meeting of stockholders of such Person if all securities entitled to vote in the election of directors of such Person (on a fully diluted basis, assuming the exercise, conversion or exchange of all rights, warrants, options and securities exercisable for, exchangeable for or convertible into, such voting securities) were present and voted at such meeting (other than votes that may be cast only upon the happening of a contingency).

“Type” has the meaning given to such term in Section 2.2(a).

“UK CTA” means the United Kingdom Corporation Tax Act 2009.

 

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“UK Insolvency Event” means:

(i) the Subsidiary Borrower is unable or admits in writing inability to pay its debts as they fall due or is declared to be unable to pay its debts under applicable law, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more classes of its creditors (other than the Administrative Agent and the Lenders) with the purpose of rescheduling any of its indebtedness;

(ii) except in connection with the rules of a Clearing House Subsidiary or any amendment thereto made in accordance with all applicable Requirements of Law, a moratorium is declared in respect of any indebtedness of the Subsidiary Borrower in an aggregate principal amount of at least the Threshold Amount; provided that if a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by such moratorium;

(iii) except in connection with any reorganization on a solvent basis permitted by, or not prohibited by, Section 7.1, any shareholders’ resolution is passed, application is made to a court by the Subsidiary Borrower or its directors, order is made by a court or agreement (other than the rules of a Clearing House Subsidiary or any amendment thereto made in accordance with all applicable Requirements of Law) is entered into or legal proceedings are taken in relation to: (A) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Subsidiary Borrower; (B) a composition, compromise, assignment or arrangement with any creditor of the Subsidiary Borrower; (C) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of the Subsidiary Borrower, or any of its assets having an aggregate value in excess of the Threshold Amount; or (D) enforcement of any Lien over any assets of the Subsidiary Borrower, or any analogous procedure or step is taken in any jurisdiction; provided that this clause (iii) shall not apply to any winding-up petition (or analogous document in any jurisdiction) which is frivolous or vexatious and is discharged, stayed or dismissed within 30 days of commencement; or

(iv) any expropriation, attachment, sequestration, distress or execution or any analogous process in any jurisdiction affects any asset or assets of the Subsidiary Borrower having an aggregate value in excess of the Threshold Amount.

“UK ITA” means the United Kingdom Income Tax Act 2007.

“UK Qualifying Lender” means a Lender which is beneficially entitled to interest payable to that Lender in respect of a Loan to the Subsidiary Borrower and is (i) a Lender: (1) which is a bank (as defined for the purpose of section 879 UK ITA) making an advance to the Subsidiary Borrower under this Agreement; or (2) in respect of an advance made under this Agreement to the Subsidiary Borrower by a Person that was a bank (as defined for the purpose of section 879 UK ITA) at the time such advance was made, and which, with respect to (1) and (2) above, is within the charge to United Kingdom corporation tax as regards any payment of interest made in respect of that advance; or (ii) a UK Treaty Lender.

 

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“UK Treaty Lender” means a Lender which:

(i) is treated as a resident of a jurisdiction having a double taxation agreement with the United Kingdom which makes provision for full exemption from Tax imposed by the United Kingdom on interest; and

(ii) does not carry on business in the United Kingdom through a permanent establishment with which that Lender’s participation in respect of a Loan to the Subsidiary Borrower is effectively connected; and

(iii) if a U.S. Lender, is fully entitled to the benefits of the UK/US Treaty (or if not so entitled, would have been so entitled but for its failure to be so fully entitled being attributable to (x) the status of or any action or omission of the Subsidiary Borrower or any Affiliate thereof or to any relationship between such Lender and the Subsidiary Borrower or any Affiliate thereof or (y) any steps taken or to be taken pursuant to Section 2.19).

“UK/US Treaty” means the convention between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital gains which is, on the date the relevant payment of interest on a Loan falls due, in force.

“Unutilized Commitment” means, with respect to any Revolving Lender at any time, such Lender’s Unutilized Dollar Revolving Commitment or Unutilized Multicurrency Revolving Commitment, or both, as the context may require.

“Unutilized Dollar Revolving Commitment” means, with respect to any Dollar Revolving Lender at any time, such Lender’s Dollar Revolving Commitment at such time less the sum of, without duplication, (i) the aggregate principal amount of all Dollar Revolving Loans and Dollar Swingline Loans made by such Lender that are outstanding at such time, (ii) such Lender’s Dollar Swingline Exposure at such time (disregarding such Lender’s Dollar Swingline Exposure in respect of any Dollar Swingline Loans made by such Lender) and (iii) such Lender’s Dollar Letter of Credit Exposure at such time.

“Unutilized Multicurrency Revolving Commitment” means, with respect to any Multicurrency Revolving Lender at any time, such Lender’s Multicurrency Revolving Commitment at such time less the sum of, without duplication, (i) the aggregate principal amount of all Multicurrency Revolving Loans and Multicurrency Swingline Loans made by such Lender that are outstanding at such time, (ii) such Lender’s Multicurrency Swingline Exposure at such time (disregarding such Lender’s Multicurrency Swingline Exposure in respect of any Multicurrency Swingline Loans made by such Lender, (ii) such Lender’s Multicurrency Swingline Exposure at such time) and (iii) such Lender’s Multicurrency Letter of Credit Exposure at such time.

“U.S. Borrower” means a Borrower that is a U.S. Person.

 

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“U.S. Lender” means a Lender which is treated as resident (for the purposes of the UK/US Treaty) in the United States of America.

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

“U.S. Tax Compliance Certificate” has the meaning given to such term in Section 2.16(g)(ii)(B)(3).

“Wells Fargo” means Wells Fargo Bank, National Association, and its successors and assigns.

“Wells Fargo Availability Period” means any time period of time other than a Wells Fargo Unavailability Period.

“Wells Fargo Fee Letter” means the letter from Wells Fargo to the Borrower, dated October 29, 2015, relating to certain fees payable by the Borrower in respect of the transactions contemplated by this Agreement.

“Wells Fargo Unavailability Period” means any period of time:

(a) starting on the date that either the BorrowersBorrower or the Required Lenders determine in their reasonable discretion that Wells Fargo is a Defaulting Lender; and

(b) ending two Business Days (or such shorter period of time as may be agreed upon in writing by the BorrowersBorrower, the Backup Administrative Agent and Wells Fargo in their sole discretion) after the date that both the BorrowersBorrower and the Required Lenders determine in their reasonable discretion and notify the other parties that Wells Fargo is not a Defaulting Lender.

“Wholly-Owned” means, with respect to any Subsidiary of any Person, that 100% of the outstanding Capital Stock of such Subsidiary (excluding any directors’ qualifying shares and shares required to be held by foreign nationals, in the case of a Foreign Subsidiary) is owned, directly or indirectly, by such Person.

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

“Withholding Agent” means each of the Borrower and the Administrative Agent.

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

 

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1.2 Accounting Terms. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial data (including financial ratios and other financial calculations) required to be delivered hereunder shall be prepared in accordance with, GAAP applied on a basis consistent with the most recent audited consolidated financial statements of the Parent Borrower and its Subsidiaries delivered to the Lenders prior to the Closing Date; provided that if the Parent Borrower notifies the Administrative Agent that it wishes to amend any financial covenant in Article VI to eliminate the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Parent Borrower that the Required Lenders wish to amend Article VI for such purpose), then compliance with such covenant shall be determined on the basis of GAAP as in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Parent Borrower and the Required Lenders. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the financial statements described in Section 4.9 for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, any election or requirement to measure any financial liability using fair value shall be disregarded.

1.3 Other Terms; Construction.

(a) 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, (i) any definition of or reference to any agreement, instrument, letter or other document shall be construed as referring to such agreement, instrument, letter or other document as from time to time amended, supplemented, restated or otherwise modified (subject to any restrictions on such amendments, supplements, restatements or modifications set forth herein or in any other Credit Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns permitted hereunder, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Credit Document, shall be construed to refer to such Credit Document in its entirety and not to any particular provision thereof, (iv) all references in a Credit Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Credit Document in which such references appear, (v) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b) All references herein to the Lenders or any of them shall be deemed to include the Swingline Lenders and the Issuing Lender unless specifically provided otherwise or unless the context otherwise requires.

 

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(c) Notwithstanding the foregoing, calculations to determine compliance by the BorrowersBorrower with any of the covenants contained in Article VI (and definitions related thereto) shall (or, with respect to any Acquisition or asset sale for which the consideration given does not exceed $250,000,000,1,000,000,000, may, at the Parent Borrower’s option) be determined in each case on a pro forma basis (a “Pro Forma Basis”) after giving effect to any Acquisition, asset sale or incurrence or repayment of Indebtedness (each, a “transaction”) occurring since the beginning of the applicable Reference Period and on or prior to the last day of such period as if such transaction had occurred as of the first day of such period, in accordance with the following:

(i) any Indebtedness incurred or assumed by the Parent Borrower or any Subsidiary thereof in connection with any transaction (including any Indebtedness of a Person acquired in an Acquisition that is not retired or repaid in connection therewith) shall be deemed to have been incurred or assumed as of (and with the corresponding interest expense included from) the first day of the applicable period (and if such Indebtedness has a floating or formula rate, such Indebtedness shall, for purposes of such determination, have an implied rate of interest during the applicable period determined by utilizing the rate of interest that is or would be in effect with respect to such Indebtedness as of the date of determination);

(ii) any Indebtedness retired or repaid in connection with any transaction (including any Indebtedness of a Person acquired in an Acquisition) shall be deemed to have been retired or repaid as of (and with the corresponding interest expense excluded from) the first day of the applicable period;

(iii) with respect to any asset disposition, income statement items (whether positive or negative) attributable to the assets sold or otherwise disposed of shall be excluded beginning as of the first day of the applicable period; and

(iv) with respect to any Acquisition, (A) income statement items (whether positive or negative) and balance sheet items attributable to the Person or assets acquired shall (to the extent not otherwise included in the consolidated financial statements of the Parent Borrower and its Subsidiaries in accordance with GAAP or in accordance with other provisions of this Agreement) be included in such calculations to the extent relating to the applicable period (provided that such income statement and balance sheet items are reflected in financial statements or other financial data reasonably acceptable to the Administrative Agent) and (B) operating expense reductions, cost savings and other pro forma adjustments attributable to such Acquisition may be included to the extent that such adjustments (y) would be permitted pursuant to Article XI of Regulation S-X under the Securities Act (irrespective of whether the Parent Borrower is subject thereto) or (z) have been approved in writing by the Administrative Agent; provided that each Compliance Certificate shall contain or be accompanied by a brief explanation, by footnote, schedule or otherwise, of pro forma adjustments made pursuant to this Section 1.3(c)(iv).

 

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1.4 Currency Equivalents Generally.

(a) The Administrative Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Amounts of amounts denominated in Foreign Currencies and shall deliver notice of such determination to the Parent Borrower; provided that the failure of the Administrative Agent to provide the Parent Borrower with any such notice shall neither affect any obligations of the BorrowersBorrower hereunder or the applicability of the Spot Rate as so determined nor result in any liability on the part of the Administrative Agent to athe Borrower. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable Currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Parent Borrower hereunder or calculating financial ratios hereunder or except as otherwise provided herein, the applicable amount of any Currency (other than Dollars) for purposes of the Credit Documents shall be such Dollar Amount as so determined by the Administrative Agent in accordance with this Agreement.

(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a LIBOR Loan, or the issuance of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, LIBOR Loan or Letter of Credit is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar Amount (rounded to the nearest unit of such Foreign Currency), as determined by the Administrative Agent.

1.5 Redenomination of Certain Foreign Currencies.

(a) Each obligation of any party to this Agreement to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.

(b) Without prejudice and in addition to any method of conversion or rounding prescribed by any EMU Legislation and (i) without limiting the liability of the BorrowersBorrower for any amount due under this Agreement and (ii) without increasing any commitment of any Lender, all references in this Agreement to minimum amounts (or integral multiples thereof) denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall, immediately upon such adoption, be replaced by references to such minimum amounts (or integral multiples thereof) as shall be specified herein with respect to Borrowings denominated in Euro.

 

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(c) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

1.6 Interest Rates. If at any time any interest rate quoted or otherwise made available from time to time under this Agreement in respect of any Currency is no longer available generally, as determined by the Administrative Agent, then the Administrative Agent (after consultation with the Parent Borrower) may, by written notice to the Lenders and the Parent Borrower, substitute such unavailable interest rate with another published interest rate that adequately reflects the all-in-cost of funds denominated in such currency to the Administrative Agent. Neither the Primary Administrative Agent nor the Backup Administrative Agent warrants, or accepts responsibility for, and neither shall have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “LIBOR Rate” or with respect to any comparable or successor rate thereto.

ARTICLE II

AMOUNT AND TERMS OF THE LOANS

2.1 Commitments.

(a) Dollar Revolving Loans. Each Dollar Revolving Lender severally agrees, subject to and on the terms and conditions of this Agreement, to make Dollar Revolving Loans to the Parent Borrower, from time to time on any Business Day during the period from and including the Closing Date to but excluding its Termination Date, in an aggregate principal amount at any time outstanding not exceeding its Dollar Revolving Commitment; provided that no Borrowing of Dollar Revolving Loans shall be made if, immediately after giving effect thereto (and to any concurrent repayment of Dollar Swingline Loans with proceeds of Dollar Revolving Loans made pursuant to such Borrowing), (y) the Dollar Revolving Credit Exposure of any Dollar Revolving Lender would exceed its Dollar Revolving Commitment at such time or (z) the Aggregate Dollar Revolving Credit Exposure would exceed the aggregate Dollar Revolving Commitments at such time. Subject to and on the terms and conditions of this Agreement, the Parent Borrower may borrow, repay and reborrow Dollar Revolving Loans.

(b) Multicurrency Revolving Loans. Each Multicurrency Revolving Lender severally agrees, subject to and on the terms and conditions of this Agreement, to make Multicurrency Revolving Loans to anythe Borrower (on a several basis), from time to time on any Business Day during the period from and including the Closing Date to but excluding its Termination Date, in an aggregate principal amount at any time outstanding not exceeding its Multicurrency Revolving Commitment; provided that no Borrowing of Multicurrency Revolving Loans shall be made if, immediately after giving effect thereto (and to any concurrent repayment of Multicurrency Swingline Loans with proceeds of Multicurrency Revolving Loans made pursuant to such Borrowing), (y) the Multicurrency Revolving Credit Exposure of any Multicurrency Revolving Lender would exceed its Multicurrency Revolving Commitment at such time or (z) the Aggregate Multicurrency Revolving Credit Exposure would exceed the aggregate Multicurrency Revolving Commitments at such time. Subject to and on the terms and conditions of this Agreement, eachthe

 

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Borrower may borrow, repay and reborrow Multicurrency Revolving Loans. Notwithstanding anything to the contrary contained herein or in any other Credit Document, no Multicurrency Revolving Loans shall be made to the Subsidiary Borrower on and after the Third Amendment Effective Date.

(c) Dollar Swingline Loans. Each Dollar Swingline Lender severally agrees, subject to and on the terms and conditions of this Agreement, to make loans in Dollars (each, a “Dollar Swingline Loan”) to the Parent Borrower, from time to time on any Business Day during the period from the Closing Date to but excluding the Swingline Maturity Date (or, if earlier, the Final Termination Date), in an aggregate principal amount up to such Dollar Swingline Lender’s Dollar Revolving Commitment as of the date on which it became a Dollar Swingline Lender hereunder (as reduced by any subsequent assignments of its obligations to make Dollar Swingline Loans in accordance with Section 10.6); provided that no Borrowing of Dollar Swingline Loans shall be made if, immediately after giving effect thereto, (x) the Dollar Revolving Credit Exposure of any Dollar Revolving Lender would exceed its Dollar Revolving Commitment at such time, (y) the Aggregate Dollar Revolving Credit Exposure would exceed the aggregate Dollar Revolving Commitments at such time or (z) any Dollar Revolving Lender is at such time a Defaulting Lender hereunder unless each Swingline Lender is satisfied it will have no Fronting Exposure after giving effect to such Dollar Swingline Loan. Subject to and on the terms and conditions of this Agreement, the Parent Borrower may borrow, repay (including by means of a Borrowing of Dollar Revolving Loans pursuant to Section 2.2(e)) and reborrow Dollar Swingline Loans.

(d) Multicurrency Swingline Loans. Each Multicurrency Swingline Lender severally agrees, subject to and on the terms and conditions of this Agreement, to make loans in any Currency other than Japanese Yen (each, a “Multicurrency Swingline Loan,” and collectively with the Dollar Swingline Loans, the “Swingline Loans”) to anythe Borrower (on a several basis), from time to time on any Business Day during the period from the Closing Date to but excluding the Swingline Maturity Date (or, if earlier, the Final Termination Date), in an aggregate principal amount up to such Multicurrency Swingline Lender’s Multicurrency Revolving Commitment as of, in the case of BofA and Wells Fargo, the ThirdFifth Amendment Effective Date or, in the case of any other Multicurrency Swingline Lender, the date on which it became a Multicurrency Swingline Lender hereunder (as reduced by any subsequent assignments of such Multicurrency Swingline Lender’s obligations to make Multicurrency Swingline Loans in accordance with Section 10.6); provided that no Borrowing of Multicurrency Swingline Loans shall be made if, immediately after giving effect thereto, (x) the Multicurrency Revolving Credit Exposure of any Multicurrency Revolving Lender would exceed its Multicurrency Revolving Commitment at such time, (y) the Aggregate Multicurrency Revolving Credit Exposure would exceed the aggregate Multicurrency Revolving Commitments at such time or (z) any Multicurrency Revolving Lender is at such time a Defaulting Lender hereunder unless each Swingline Lender is satisfied it will have no Fronting Exposure after giving effect to such Multicurrency Swingline Loan. Subject to and on the terms and conditions of this Agreement, eachthe Borrower may borrow, repay (including by means of a Borrowing of Multicurrency Revolving Loans pursuant to Section 2.2(e)) and reborrow Multicurrency Swingline Loans. Notwithstanding anything to the contrary contained herein or in any other Credit Document, no Multicurrency Swingline Loans shall be made to the Subsidiary Borrower on and after the Third Amendment Effective Date.

 

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2.2 Borrowings.

(a) Types of Loans. The Dollar Revolving Loans and Multicurrency Revolving Loans denominated in Dollars shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan). The Multicurrency Revolving Loans denominated in a Foreign Currency shall be made and maintained as LIBOR Loans at all times. All Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Class, Type and Currency. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times.

(b) Notices for Borrowing Revolving Loans. In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings for the purpose of satisfying a Reimbursement Obligation of athe Borrower, which shall be made pursuant to Section 2.19(e), and (z) Borrowings involving continuations or conversions of outstanding Revolving Loans, which shall be made pursuant to Section 2.11), the applicable Borrower will give the Administrative Agent written notice (i) not later than 12:00 noon, Charlotte, North Carolina time, three Business Days prior to each Borrowing of Dollar Revolving Loans or Multicurrency Revolving Loans denominated in Dollars to be comprised of LIBOR Loans, (ii) not later than 12:00 noon, Charlotte, North Carolina time, on the Business Day of any Borrowing of Dollar Revolving Loans or Multicurrency Revolving Loans denominated in Dollars to be comprised of Base Rate Loans, and (iii) not later than 10:00 a.m., Charlotte, North Carolina time, four Business Days prior to each Borrowing of Multicurrency Revolving Loans denominated in a Foreign Currency; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Currency, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein:

(i) except for a Borrowing with respect to a Refunded Swingline Loan in accordance with Section 2.2(e) and Borrowings to satisfy a Reimbursement Obligation of athe Borrower in accordance with Section 2.19(e), the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Commitments with respect to the applicable Class), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Commitments with respect to the applicable Class);

(ii) if athe Borrower shall have failed to designate the Type of Dollar Revolving Loans or Multicurrency Revolving Loans denominated in Dollars comprising a Borrowing, suchthe Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and

 

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(iii) if athe Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then suchthe Borrower shall be deemed to have selected an Interest Period with a duration of one month.

(c) Funding of Revolving Loans. Not later than 1:00 p.m., Local Time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at its Payment Office an amount, in the applicable Currency and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the applicable Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent; provided, however, that if, on any Borrowing Date there are any Swingline Loans outstanding, then the proceeds of the Borrowing made on such date other than proceeds borrowed for the purpose of repaying Refunded Swingline Loans under Section 2.2(e), shall, first, be applied to the payment in full of any such Swingline Loans (converted into the applicable Currency in an amount equal to the Dollar Amount of the principal of such Swingline Loan, if necessary), and second, be made available to the applicable Borrower as provided above.

(d) Notices for and Funding of Swingline Loans. In order to make a Borrowing of Swingline Loans, the applicable Borrower will give the Administrative Agent, each applicable Swingline Lender and, with respect to Multicurrency Swingline Loans, the Multicurrency Agent, written notice not later than (x) with respect to any requested Swingline Loans denominated in Dollars, 3:30 p.m., Local Time, or (y) with respect to any requested Swingline Loans denominated in any other Currency, 12:00 noon, Local Time, in each case on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) whether such Swingline Loans are Dollar Swingline Loans or Multicurrency Swingline Loans, (ii) with respect to any requested Multicurrency Swingline Loans, the Currency in which such Multicurrency Swingline Loans are to be denominated, (iii) the principal amount of the Swingline Loans requested to be made pursuant to such Borrowing (which (A) with respect to Dollar Swingline Loans, shall not be less than $100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Dollar Revolving Commitments of the Dollar Swingline Lenders) and (B) with respect to Multicurrency Swingline Loans, the Dollar Amount of which shall not be less than $5,000,000 and, if greater, shall be in an integral multiple of $1,000,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Multicurrency Revolving Commitments of the Multicurrency Swingline Lenders)) and (iv) the requested Borrowing Date, which shall be a Business Day. Not later than (x) with respect to any requested Borrowing of Swingline Loans denominated in Dollars, 4:30 p.m., Local Time, or (y) with respect to any requested Borrowing of Swingline Loans denominated in any other Currency, 1:00 p.m., Local Time, on the requested Borrowing Date, each applicable Swingline Lender will make available to the Administrative Agent at its Payment Office an amount, in the applicable Currency and in immediately available funds, equal to the amount of the Swingline Loans to be made by such Swingline Lender. To the extent such Swingline Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount

 

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available to the applicable Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. Fundings of each Borrowing of Swingline Loans of any Class shall be made by the applicable Swingline Lenders pro rata based on the percentage that each such Swingline Lender’s Commitments of such Class represent of the aggregate Commitments of such Class for all such Swingline Lenders.

(e) Refunded Swingline Loans. With respect to any outstanding Swingline Loans, the Swingline Lender who made any such Loans may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the applicable Borrower to, cause a Borrowing of (i) Dollar Revolving Loans, with respect to any Dollar Swingline Loan made by such Lender, or (ii) Multicurrency Revolving Loans, with respect to any Multicurrency Swingline Loan made by such Lender, in each case to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also such Swingline Lender) and each other applicable Lender (on behalf of, and with a copy to, the applicable Borrower), not later than 12:00 noon, Charlotte, North Carolina time, (A) on the Business Day of the proposed Borrowing Date therefor with respect to the repayment of any such Dollar Swingline Loans, any such Multicurrency Swingline Loans denominated in Dollars or any such Multicurrency Swingline Loans denominated in a Foreign Currency in respect of which such Swingline Lender, in its sole and absolute discretion, has elected to accept Dollars or (B) four Business Days prior to the proposed Borrowing Date therefor with respect to the repayment of any such Multicurrency Swingline Loans not described in clause (A) above, a notice (which shall be deemed to be a Notice of Borrowing given by the applicable Borrower) requesting the Dollar Revolving Lenders or Multicurrency Revolving Lenders, as the case may be, to make Dollar Revolving Loans or Multicurrency Revolving Loans, respectively (which, in the case of Dollar Revolving Loans or Multicurrency Revolving Loan denominated in Dollars, shall be made initially as Base Rate Loans and, in the case of all other Multicurrency Revolving Loans, shall be made initially as LIBOR Loans with an Interest Period of one month) on such Borrowing Date in an aggregate amount equal to the Dollar Amount of such Dollar Swingline Loans or Multicurrency Swingline Loans, as the case may be (the “Refunded Swingline Loans”), outstanding on the date such notice is given that such Swingline Lender requests to be repaid. Not later than 1:00 p.m., Local Time, on the requested Borrowing Date, each applicable Lender (other than such Swingline Lender) will make available to the Administrative Agent at its Payment Office an amount, in the applicable Currency and in immediately available funds, equal to the Dollar Amount of the Dollar Revolving Loan or Multicurrency Revolving Loan, as the case may be, to be made by such Lender. To the extent the applicable Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to such Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the applicable Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the applicable Refunded Swingline Loans (including such Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Dollar Revolving Loans or Multicurrency Revolving Loans, as the case may be, made as provided above (including a Dollar Revolving Loan or Multicurrency Revolving Loan, as the case may be, deemed to have been made by such Swingline Lender in its capacity as a Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Dollar Revolving Loans or Multicurrency Revolving Loans, as the case may be. If any portion of any

 

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such amount repaid (or deemed to be repaid) to such Swingline Lender shall be recovered by or on behalf of the applicable Borrower from such Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among (i) all the Dollar Revolving Lenders, with respect to the applicable Dollar Swingline Loans, or (ii) all the Multicurrency Revolving Lenders, with respect to the applicable Multicurrency Swingline Loans, in the manner contemplated by Section 2.14(b).

(f) Participations in Swingline Loans. If, for any reason (including as a result of any Bankruptcy Event with respect to athe Borrower), Dollar Revolving Loans or Multicurrency Revolving Loans, as the case may be, are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the applicable Swingline Lender in respect of any outstanding Swingline Loans made by such Swingline Lender, or if such Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the applicable Borrower as provided for in Section 2.2(e), such Swingline Lender shall be deemed to have sold without recourse, representation or warranty, and each Dollar Revolving Lender or Multicurrency Revolving Lender, as the case may be, shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Dollar Revolving Commitment or Multicurrency Revolving Commitment, as the case may be, bears to the aggregate Dollar Revolving Commitments or Multicurrency Revolving Commitments, respectively, at such time, or if the Dollar Revolving Commitments or Multicurrency Revolving Commitments, as the case may be, have been terminated, based on the proportion that its Dollar Revolving Commitment or Multicurrency Revolving Commitment, as the case may be, bears to the aggregate Dollar Revolving Commitments or Multicurrency Revolving Commitments, respectively, in each case immediately prior to the termination thereof) of the unpaid amount thereof together with accrued interest thereon. Upon notice delivered by such Swingline Lender to the Administrative Agent, and by the Administrative Agent to each Lender, not later than 12:00 noon, Charlotte, North Carolina time, (i) on the Business Day of the proposed funding of the participations described above with respect to any applicable Dollar Swingline Loans, any applicable Multicurrency Swingline Loans denominated in Dollars or any applicable Multicurrency Swingline Loans denominated in a Foreign Currency in respect of which such Swingline Lender, in its sole and absolute discretion, has elected to accept Dollars or (ii) four Business Days prior to the proposed funding of the participations described above with respect to any applicable Multicurrency Swingline Loans not described in clause (i) above, each Dollar Revolving Lender or Multicurrency Revolving Lender, as the case may be (other than such Swingline Lender), will make available to the Administrative Agent at its Payment Office an amount, in the applicable Currency and in immediately available funds, equal to its respective participation. To the extent the applicable Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to such Swingline Lender in like funds as received by the Administrative Agent. In the event any applicable Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the applicable Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of such Swingline Lender until the date such amount is made available to such Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged

 

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by such Swingline Lender in connection with the foregoing. Promptly following its receipt of any payment by or on behalf of the applicable Borrower in respect of any applicable Swingline Loan, such Swingline Lender will pay to each Dollar Revolving Lender or Multicurrency Revolving Lender, as the case may be, that has acquired a participation therein such Lender’s ratable share of such payment.

(g) Obligations Absolute. Notwithstanding any provision of this Agreement to the contrary, the obligation of each Dollar Revolving Lender and each Multicurrency Revolving Lender (other than the applicable Swingline Lender) to make Dollar Revolving Loans or Multicurrency Revolving Loans, as the case may be, for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Dollar Revolving Lender’s or Multicurrency Revolving Lender’s, as the case may be, obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including (i) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the applicable Swingline Lender, the Administrative Agent, athe Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Loans to meet the minimum Borrowing amount specified in Section 2.2(b) or (iv) the failure of any conditions set forth in Section 3.2 or elsewhere herein to be satisfied.

2.3 Disbursements; Funding Reliance; Domicile of Loans.

(a) Disbursements. EachThe Borrower hereby authorizes the Administrative Agent to disburse the proceeds of each Borrowing in accordance with the terms of any written instructions from any Authorized Officer of suchthe Borrower; provided that the Administrative Agent shall not be obligated under any circumstances to forward amounts to any account not listed in an Account Designation Letter. EachThe Borrower may at any time deliver to the Administrative Agent an Account Designation Letter listing any additional accounts or deleting any accounts listed in a previous Account Designation Letter.

(b) Funding Reliance. Unless the Administrative Agent shall have received notice from a 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 Section 2.2 and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the applicable Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by athe Borrower, the Adjusted Base Rate. If athe Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to suchthe Borrower the amount of such interest paid by suchthe Borrower for such

 

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period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by athe Borrower shall be without prejudice to any claim suchthe Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

(c) Several Obligations. The obligations of the Lenders hereunder to make Loans, to fund participations in Swingline Loans and Letters of Credit and to make payments pursuant to Section 10.1(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any such payment on any date shall not relieve any other Lender of its corresponding obligation, if any, hereunder to do so on such date, but no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make any such payment required hereunder.

(d) Domicile of Loans. Each Lender may, at its option, make and maintain any Loan at, to or for the account of any of its Lending Offices; provided that any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Loan to or for the account of such Lender in accordance with the terms of this Agreement.

2.4 Evidence of Debt; Notes.

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

(b) Register. The Administrative Agent shall maintain the Register pursuant to Section 10.6(c), and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made by such Lender, the Class, Currency and Type of each such Loan 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 eachthe Borrower to each Lender hereunder in respect of each such Loan and (iii) the amount of any sum received by the Administrative Agent hereunder from eachthe Borrower in respect of each such Loan and each Lender’s share thereof.

(c) Reliance on Register. The entries made in the Register and subaccounts maintained pursuant to Section 2.4(b) (and, if consistent with the entries of the Administrative Agent, the accounts maintained pursuant to Section 2.4(a)) shall, to the extent permitted by applicable law, be conclusive absent manifest error of the existence and amounts of the obligations of the BorrowersBorrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain such account, such Register or such subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of eachthe Borrower to repay (with applicable interest) the Loans made to suchthe Borrower by such Lender in accordance with the terms of this Agreement.

 

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(d) Notes. The Loans of each Class made by each Lender shall, if requested by the applicable Lender (which request shall be made to the Administrative Agent), be evidenced (i) in the case of Dollar Revolving Loans, by a Dollar Revolving Note appropriately completed in substantially the form of Exhibit A-1, (ii) in the case of Multicurrency Revolving Loans, by a Multicurrency Revolving Note appropriately completed in substantially the form of Exhibit A-2, (iii) in the case of Dollar Swingline Loans, by a Dollar Swingline Note appropriately completed in substantially the form of Exhibit A-3 and (iv) in the case of Multicurrency Swingline Loans, by a Multicurrency Swingline Note appropriately completed in substantially the form of Exhibit A-4, in each case executed by the applicable Borrower and payable to the order of such Lender. Each Note shall be entitled to all of the benefits of this Agreement and the other Credit Documents and shall be subject to the provisions hereof and thereof.

2.5 Termination and Reduction of Commitments.

(a) Mandatory Termination. Unless sooner terminated pursuant to any other provision of this Section 2.5 or Section 8.2, (i) the Revolving CommitmentsCommitment of each Lender shall be automatically and permanently terminated on the Finalits Termination Date and (ii) the obligation of the Swingline Lenders to make Swingline Loans shall be automatically and permanently terminated and reduced to zero on the Swingline Maturity Date.

(b) Optional Termination or Reduction. At any time and from time to time after the date hereof, upon not less than five Business Days’ prior written notice to the Administrative Agent, the Parent Borrower may terminate in whole or reduce in part the aggregate Unutilized Dollar Revolving Commitments or the aggregate Unutilized Multicurrency Revolving Commitments; provided that any such partial reduction shall be in an aggregate Dollar Amount of not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof. The amount of any termination or reduction made under this Section 2.5(b) may not thereafter be reinstated; provided that a notice of termination or reduction delivered by the Parent Borrower under this Section 2.5(b) may state that such notice is conditioned upon the effectiveness or occurrence of any other event specified therein, in which case such notice may be revoked by the Parent Borrower by written notice to the Administrative Agent on or before one Business Day before the specified effective date if such condition is not satisfied.

(c) Ratable Application. Except as set forth in Section 2.5(d), each reduction of the Commitments pursuant to this Section 2.5 shall be applied ratably among the Lenders of such Class according to their respective Commitments of such Class.

(d) Termination of Defaulting Lenders. The Parent Borrower (on behalf of itself and the Subsidiary Borrower) may terminate the unused amount of the Commitment(s) of any Revolving Lender that is a Defaulting Lender upon not less than three Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.21(a)(ii) will apply to all amounts thereafter paid by the BorrowersBorrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing and (ii) such termination shall not be deemed to be a waiver or release of any claim anythe Borrower, the Administrative Agent, the Issuing Lender or any Lender may have against such Defaulting Lender.

 

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2.6 Mandatory Payments and Prepayments.

(a) Scheduled Maturity. Except to the extent due or paid sooner pursuant to the provisions of this Agreement, (i) the aggregate outstanding principal of each Revolving Loan shall be due and payable in full on the applicable Maturity Date for the Lender who made such Revolving Loan and (ii) the aggregate outstanding principal amount of each Swingline Loan shall be due and payable in full on the earlier of (A) the date 10 Business Days following the date such Swingline Loan is made and (B) the Swingline Maturity Date.

(b) Dollar Revolving Credit Exposure. In the event that, at any time, the Aggregate Dollar Revolving Credit Exposure (excluding the aggregate amount of any Dollar Swingline Loans to be repaid with proceeds of Dollar Revolving Loans made on the date of determination) shall exceed the aggregate Dollar Revolving Commitments at such time (after giving effect to any concurrent termination or reduction thereof), the Parent Borrower will immediately prepay the outstanding principal amount of the Dollar Swingline Loans to the amount of such excess and, to the extent of any excess remaining after prepayment in full of outstanding Dollar Swingline Loans, the outstanding principal amount of the Dollar Revolving Loans in the amount of such excess; provided that, to the extent such excess amount is greater than the aggregate principal amount of Dollar Swingline Loans and Dollar Revolving Loans outstanding immediately prior to the application of such prepayment, the amount so prepaid shall be retained by the Administrative Agent and held in the Cash Collateral Account as cover for Dollar Letter of Credit Exposure, as more particularly described in Section 2.19(i), and thereupon such cash shall be deemed to reduce the aggregate Dollar Letter of Credit Exposure by an equivalent amount.

(c) Multicurrency Revolving Credit Exposure. In the event that, on any Revaluation Date, the Aggregate Multicurrency Revolving Credit Exposure (excluding the aggregate amount of any Multicurrency Swingline Loans to be repaid with proceeds of Multicurrency Revolving Loans made on such Revaluation Date) shall exceed 105% of the aggregate Multicurrency Revolving Commitments at such time after giving effect to any concurrent termination or reduction thereof (or 100% if the Aggregate Multicurrency Revolving Credit Exposure is denominated in Dollars only), the applicable Borrower or Borrowers, as the case may be, will prepay the outstanding principal amount of the Multicurrency Swingline Loans in the amount of such excess and, to the extent of any excess remaining after prepayment in full of outstanding Multicurrency Swingline Loans, the outstanding principal amount of the Multicurrency Revolving Loans in the amount of such excess, (i) within one Business Day after receipt of notice thereof for any such prepayment of Multicurrency Revolving Loans or Multicurrency Swingline Loans denominated in Dollars and (ii) within three Business Days after receipt of notice thereof for any such prepayment of Multicurrency Revolving Loans or Multicurrency Swingline Loans denominated in a Foreign Currency; provided that, to the extent such excess amount is greater than the aggregate principal amount of Multicurrency Swingline Loans and Multicurrency Revolving Loans outstanding immediately prior to the application of such prepayment, the amount so prepaid shall be retained by the Administrative Agent and held in the Cash Collateral Account as cover for Multicurrency Letter of Credit Exposure, as more particularly described in Section 2.19(i), and thereupon such cash shall be deemed to reduce the aggregate Multicurrency Letter of Credit Exposure by an equivalent amount.

 

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2.7 Voluntary Prepayments.

(a) Procedure. At any time and from time to time, eachthe Borrower shall have the right to prepay the Loans of any Class made to suchthe Borrower, in whole or in part, without premium or penalty (except as provided in clause (iii) below), upon written notice given to the Administrative Agent not later than 12:00 noon, Local Time, three Business Days prior to each intended prepayment of LIBOR Loans, one Business Day prior to each intended prepayment of Base Rate Loans and on the date of each intended prepayment of LIBOR Market Index Rate Loans; provided that (i) each partial prepayment of LIBOR Loans or Multicurrency Swingline Loans shall be in an aggregate principal amount of not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, and each partial prepayment of Base Rate Loans shall be in an aggregate principal amount of not less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof ($100,000 and $100,000, respectively, in the case of Dollar Swingline Loans), (ii) no partial prepayment of LIBOR Loans or Multicurrency Swingline Loans made pursuant to any single Borrowing shall reduce the aggregate outstanding principal amount of the remaining LIBOR Loans or Multicurrency Swingline Loans, respectively, under such Borrowing to less than $5,000,000 or to any greater amount not an integral multiple of $1,000,000 in excess thereof and (iii) unless made together with all amounts required under Section 2.17 to be paid as a consequence of such prepayment, a prepayment of a LIBOR Loan may be made only on the last day of the Interest Period applicable thereto. Each such notice shall specify the proposed date of such prepayment and the aggregate principal amount, Class, Currency and Type of the Loans to be prepaid (and, in the case of LIBOR Loans, the Interest Period of the Borrowing pursuant to which made), and shall be irrevocable and shall bind the applicable Borrower to make such prepayment on the terms specified therein; provided, however, that a notice of prepayment delivered by athe Borrower under this Section 2.7(a) may state that such notice is conditioned upon the effectiveness of other credit facilities or other debt financing or the consummation of a specified transaction set forth in such notice, in which case such notice may be revoked by the Parent Borrower by written notice to the Administrative Agent on or before the specified effective date if such condition is not satisfied (and the Parent Borrower shall pay all amounts, if any, required under Section 2.17 to be paid as a consequence of any such revocation). Revolving Loans and Swingline Loans prepaid pursuant to this Section 2.7(a) may be reborrowed, subject to the terms and conditions of this Agreement. In the event the Administrative Agent receives a notice of prepayment under this Section 2.7(a), the Administrative Agent will give prompt notice thereof to the Lenders; provided that if such notice has also been furnished to the Lenders, the Administrative Agent shall have no obligation to notify the Lenders with respect thereto.

(b) Ratable Application. Each prepayment of the Loans of any Class made pursuant to Section 2.7(a) shall be applied ratably among the Lenders of such Class holding the Loans being prepaid, in proportion to the principal amount held by each.

2.8 Interest.

(a) General. Subject to Section 2.8(b), eachthe Borrower will pay interest in respect of the unpaid principal amount of each Loan made to it, from the date of Borrowing thereof until such principal amount shall be paid in full, (i) at the Adjusted Base Rate, as in effect from time to time during such periods as such Loan is a Base Rate Loan, (ii) at the Adjusted LIBOR Rate, as in effect from time to time during such periods as such Loan is a LIBOR Loan, and (iii) at the Adjusted LIBOR Market Index Rate, as in effect from time to time for all Swingline Loans.

 

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(b) Default Interest. Upon the occurrence and during the continuance of any Event of Default under Section 8.1(a), 8.1(f) or 8.1(g) and (at the election of the Required Lenders) upon the occurrence and during the continuance of any other Event of Default, any principal of or interest on any Loan or any Reimbursement Obligation, or any fee or other amount payable by anythe Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest at a rate per annum equal to the interest rate applicable from time to time thereafter (including the Applicable Percentage) to such Loans or other amounts plus 2% (or, in the case of interest, fees and other amounts for which no rate is provided hereunder, at the Adjusted Base Rate plus 2%), and, in each case, such default interest shall be payable on demand. To the greatest extent permitted by law, interest shall continue to accrue after the filing by or against athe Borrower of any petition seeking any relief under any Debtor Relief Law.

(c) Application. Accrued (and theretofore unpaid) interest shall be payable as follows:

(i) in respect of each Base Rate Loan (including any Base Rate Loan or portion thereof paid or prepaid pursuant to the provisions of Section 2.6, except as provided hereinbelow) and each LIBOR Market Index Rate Loan, in arrears on the last Business Day of each calendar quarter, beginning with the first such day to occur after the Closing Date; provided that, in the event the Loans are repaid or prepaid in full and the Commitments have been terminated, then accrued interest in respect of all Base Rate Loans and LIBOR Market Index Rate Loans shall be payable together with such repayment or prepayment on the date thereof;

(ii) in respect of each LIBOR Loan (including any LIBOR Loan or portion thereof paid or prepaid pursuant to the provisions of Section 2.6, except as provided hereinbelow), in arrears (y) on the last Business Day of the Interest Period applicable thereto (subject to the provisions of Section 2.10(iv)) and (z) in addition, in the case of a LIBOR Loan with an Interest Period having a duration of six months or longer, on each date on which interest would have been payable under clause (y) above had successive Interest Periods of three months’ duration been applicable to such LIBOR Loan; provided that, in the event all LIBOR Loans made pursuant to a single Borrowing are repaid or prepaid in full, then accrued interest in respect of such LIBOR Loans shall be payable together with such repayment or prepayment on the date thereof and any amounts due under Section 2.17, to the extent applicable; and

(iii) in respect of any Loan, at maturity (whether pursuant to acceleration or otherwise) and, after maturity, on demand.

(d) Maximum. Nothing contained in this Agreement or in any other Credit Document shall be deemed to establish or require the payment of interest to any Lender at a rate in excess of the maximum rate permitted by applicable law. If the amount of interest payable for the account of any Lender on any interest payment date would exceed the maximum amount permitted by applicable law to be charged by such Lender, the amount of interest payable for its account on such interest payment date shall be automatically reduced to such maximum permissible amount. In the event of any such reduction affecting any Lender, if from time to time thereafter the amount of interest payable for the account of such Lender on any interest payment date would be less than the maximum amount permitted by applicable law to be charged by such Lender, then the amount of interest payable for its account on such

 

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subsequent interest payment date shall be automatically increased to such maximum permissible amount; provided that at no time shall the aggregate amount by which interest paid for the account of any Lender has been increased pursuant to this sentence exceed the aggregate amount by which interest paid for its account has theretofore been reduced pursuant to the previous sentence.

(e) Determination. The Administrative Agent shall promptly notify the applicable Borrower and the Lenders upon determining the interest rate for each Borrowing of LIBOR Loans after its receipt of the relevant Notice of Borrowing or Notice of Conversion/Continuation, and upon each change in the Base Rate; provided, however, that the failure of the Administrative Agent to provide athe Borrower or the Lenders with any such notice shall neither affect any obligations of the BorrowersBorrower or the Lenders hereunder nor result in any liability on the part of the Administrative Agent to the BorrowersBorrower or any Lender. Each such determination (including each determination of the Reserve Requirement) shall, absent manifest error, be conclusive and binding on all parties hereto.

2.9 Fees.

(a) Payable by the ParentThe Borrower. The Parent Borrower agrees to pay:

(i) To Wells Fargo, for its own account, the administrative fee required under the Wells Fargo Fee Letter to be paid to Wells Fargo, in the amounts due and at the times due as required by the terms thereof;

(ii) To BofA, for its own account, the administrative fee required under the BofA Fee Letter to be paid to BofA, in the amounts due and at the times due as required by the terms thereof;

(iii) To the Administrative Agent, for the account of each Dollar Revolving Lender, a commitment fee for each calendar quarter (or portion thereof) for the period from and including the Closing Date to but excluding such Dollar Revolving Lender’s Termination Date, at a per annum rate equal to the Applicable Percentage in effect for such fee from time to time during such quarter on such Dollar Revolving Lender’s ratable share (based on the proportion that its Dollar Revolving Commitment bears to the aggregate Dollar Revolving Commitments) of the average daily aggregate Unutilized Dollar Revolving Commitments (excluding clause (ii) of the definition of Unutilized Dollar Revolving Commitmentsthe aggregate principal amount of all Dollar Swingline Loans for purposes of this Section 2.9(a)(ii) onlydetermining such commitment fee), payable in arrears (i) on the last Business Day of each calendar quarter, beginning with the first such day to occur after the Closing Date, and (ii) on such Dollar Revolving Lender’s Termination Date;

 

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(iv) To the Administrative Agent, for the account of each Multicurrency Revolving Lender, a commitment fee for each calendar quarter (or portion thereof) for the period from and including the Closing Date to but excluding such Multicurrency Revolving Lender’s Termination Date, at a per annum rate equal to the Applicable Percentage in effect for such fee from time to time during such quarter on such Multicurrency Revolving Lender’s ratable share (based on the proportion that its Multicurrency Revolving Commitment bears to the aggregate Multicurrency Revolving Commitments) of the average daily aggregate Unutilized Multicurrency Commitments (excluding clause (ii) of the definition of Unutilizedthe aggregate principal amount of all Multicurrency Revolving CommitmentsSwingline Loans for purposes of this Section 2.9(a)(iv) onlydetermining such commitment fee), payable in arrears (i) on the last Business Day of each calendar quarter, beginning with the first such day to occur after the Closing Date, and (ii) on such Multicurrency Revolving Lender’s Termination Date;

(v) To the Administrative Agent, for the account of each Dollar Revolving Lender, a letter of credit fee for each calendar quarter (or portion thereof) in respect of all Dollar Letters of Credit outstanding during such quarter, at a per annum rate equal to the Applicable Percentage in effect from time to time during such quarter for LIBOR Loans, on such Lender’s ratable share (based on the proportion that its Dollar Revolving Commitment bears to the aggregate Dollar Revolving Commitments, or if the Dollar Revolving Commitments have been terminated, based upon the proportion that its Dollar Revolving Credit Exposure bears to the Aggregate Dollar Revolving Credit Exposure) of the daily average aggregate Stated Amount of such Dollar Letters of Credit, payable in arrears (i) on the last Business Day of each calendar quarter, beginning with the first such day to occur after the Closing Date, and (ii) on the later of such Dollar Revolving Lender’s Termination Date and the last date on which all Dollar Letter of Credits that were outstanding on such Dollar Revolving Lender’s Termination Date are terminated;

(b) Payable by each Borrower. Each applicable Borrower agrees to pay:

(vi) (i) To the Administrative Agent, for the account of each Multicurrency Revolving Lender, a letter of credit fee for each calendar quarter (or portion thereof) in respect of all Multicurrency Letters of Credit issued for the account of suchthe Borrower outstanding during such quarter, at a per annum rate equal to the Applicable Percentage in effect from time to time during such quarter for LIBOR Loans, on such Lender’s ratable share (based on the proportion that its Multicurrency Revolving Commitment bears to the aggregate Multicurrency Revolving Commitments, or if the Multicurrency Revolving Commitments have been terminated, based upon the proportion that its Multicurrency Revolving Credit Exposure bears to the Aggregate Multicurrency Revolving Credit Exposure) of the daily average aggregate Stated Amount of such Multicurrency Letters of Credit, payable in arrears (i) on the last Business Day of each calendar quarter, beginning with the first such day to occur after the Closing Date, and (ii) on the later of such Multicurrency Revolving Lender’s Termination Date and the last date on which all Multicurrency Letter of Credits that were outstanding on such Multicurrency Revolving Lender’s Termination Date are terminated;

 

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(vii) (ii) To Wells Fargo, for its own account in its capacity as the Issuing Lender, the fronting fee required under the Wells Fargo Fee Letter to be paid to Wells Fargo with respect to each Letter of Credit issued for the account of suchthe Borrower, in the amounts due and at the times due as required by the terms thereof; and

(viii) (iii) To the Issuing Lender, for its own account, such commissions, transfer fees and other fees and charges incurred in connection with the issuance and administration of each Letter of Credit issued for the account of suchthe Borrower as are customarily charged from time to time by the Issuing Lender for the performance of such services in connection with similar letters of credit, or as may be otherwise agreed to by the Issuing Lender, but without duplication of amounts payable under Section 2.9(ba)(iivii).

2.10 Interest Periods. Concurrently with the giving of a Notice of Borrowing of LIBOR Loans or Notice of Conversion/Continuation in respect of any Borrowing comprised of Base Rate Loans to be converted into, or LIBOR Loans to be continued as, LIBOR Loans, the applicable Borrower shall have the right to elect, pursuant to such notice, the interest period (each, an “Interest Period”) to be applicable to such LIBOR Loans, which Interest Period shall, at the option of the applicable Borrower, be a one-, two-, three- or six-month period; provided, however, that:

(i) all LIBOR Loans comprising a single Borrowing shall at all times have the same Interest Period;

(ii) the initial Interest Period for any LIBOR Loan shall commence on the date of the Borrowing of such LIBOR Loan (including the date of any continuation of, or conversion into, such LIBOR Loan), and each successive Interest Period applicable to such LIBOR Loan shall commence on the day on which the next preceding Interest Period applicable thereto expires;

(iii) LIBOR Loans may not be outstanding under more than 10 separate Interest Periods at any one time (for which purpose Interest Periods shall be deemed to be separate even if they are coterminous);

(iv) if any Interest Period otherwise would expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless such next succeeding Business Day falls in another calendar month, in which case such Interest Period shall expire on the next preceding Business Day;

(v) athe Borrower may not select any Interest Period that expires after the Final Maturity Date;

(vi) if any Interest Period begins on a day for which there is no numerically corresponding day in the calendar month during which such Interest Period would otherwise expire, such Interest Period shall expire on the last Business Day of such calendar month; and

(vii) athe Borrower may not select any Interest Period (and consequently, no LIBOR Loans shall be made) if an Event of Default shall have occurred and be continuing at the time of such Notice of Borrowing or Notice of Conversion/Continuation with respect to any Borrowing.

 

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2.11 Conversions and Continuations.

(a) General. The applicable Borrower shall have the right, on any Business Day occurring on or after the Closing Date, to elect (i) to convert all or a portion of the outstanding principal amount of any Base Rate Loans into LIBOR Loans, or to convert any LIBOR Loans the Interest Periods for which end on the same day into Base Rate Loans, or (ii) upon the expiration of any Interest Period, to continue all or a portion of the outstanding principal amount of any LIBOR Loans the Interest Periods for which end on the same day for an additional Interest Period; provided that (t) Borrowings of a Class may only be continued as or converted into a Borrowing of the same Class, (u) a Borrowing denominated in one Currency may not be continued as, or converted to, a Borrowing in a different Currency, (v) a Borrowing of LIBOR Loans denominated in a Foreign Currency may not be converted to a Borrowing of a different Type, (w) any such conversion of LIBOR Loans into Base Rate Loans shall involve an aggregate principal amount of not less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; any such conversion of Base Rate Loans into, or continuation of, LIBOR Loans shall involve an aggregate principal amount of not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; and no partial conversion of LIBOR Loans made pursuant to a single Borrowing shall reduce the outstanding principal amount of such LIBOR Loans to less than $5,000,000 or to any greater amount not an integral multiple of $1,000,000 in excess thereof, (x) except as otherwise provided in Section 2.15(f), LIBOR Loans may be converted into Base Rate Loans only on the last day of the Interest Period applicable thereto (and, in any event, if a LIBOR Loan is converted into a Base Rate Loan on any day other than the last day of the Interest Period applicable thereto, suchthe Borrower will pay, upon such conversion, all amounts required under Section 2.17 to be paid as a consequence thereof), (y) no such conversion or continuation shall be permitted with regard to any Swingline Loans and (z) no conversion of Base Rate Loans into LIBOR Loans or continuation of LIBOR Loans shall be permitted during the continuance of an Event of Default.

(b) Procedure. AThe Borrower shall make each such election by giving the Administrative Agent written notice (i) not later than 12:00 noon, Charlotte, North Carolina time, three Business Days prior to the intended effective date of any conversion of Base Rate Loans into LIBOR Loans, or any continuation of LIBOR Loans denominated in Dollars, (ii) not later than 12:00 noon, Charlotte, North Carolina time, four Business Days prior to the intended effective date of any continuation of LIBOR Loans denominated in a Foreign Currency and (iii) not later than 12:00 noon, Charlotte, North Carolina time, one Business Day prior to the intended effective date of any conversion of LIBOR Loans into Base Rate Loans. Each such notice (each, a “Notice of Conversion/Continuation”) shall be irrevocable, shall be given in the form of Exhibit B-3 and shall specify (x) the date of such conversion or continuation (which shall be a Business Day), (y) in the case of a conversion into, or a continuation of, LIBOR Loans, the Interest Period to be applicable thereto, and (z) the aggregate amount, Class, Currency and Type of the Loans being converted or continued. Upon the receipt of a Notice of Conversion/Continuation, the Administrative Agent will promptly notify each applicable Lender of the proposed conversion or continuation. In the event that athe Borrower shall fail to deliver a Notice of Conversion/Continuation as provided herein with respect to any of its outstanding LIBOR Loans,

 

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such LIBOR Loans denominated in Dollars shall automatically be continued as LIBOR Loans with an Interest Period of one month upon the expiration of the then-current Interest Period applicable thereto (unless repaid pursuant to the terms hereof) and LIBOR Loans denominated in a Foreign Currency shall be repaid upon the expiration of the then-current Interest Period applicable thereto pursuant to the terms hereof. In the event athe Borrower shall have failed to select in a Notice of Conversion/Continuation the duration of the Interest Period to be applicable to any conversion into, or continuation of, its LIBOR Loans, then suchthe Borrower shall be deemed to have selected an Interest Period with a duration of one month.

2.12 Method of Payments; Computations; Apportionment of Payments.

(a) Payments by BorrowersBorrower . All payments by athe Borrower hereunder shall be made without setoff, counterclaim or other defense, in the applicable Currency and in immediately available funds to the Administrative Agent, for the account of the Lenders entitled to such payment or the Administrative Agent, the Multicurrency Agent, the Issuing Lender or the Swingline Lenders, as the case may be (except as otherwise expressly provided herein as to payments required to be made directly to the Lenders) at its Payment Office prior to 1:00 p.m., Local Time, on the date payment is due. Any payment made as required hereinabove, but after 1:00 p.m., Local Time, shall be deemed to have been made on the next succeeding Business Day. If any payment falls due on a day that is not a Business Day, then such due date shall be extended to the next succeeding Business Day (except that in the case of LIBOR Loans to which the provisions of Section 2.10(iv) are applicable, such due date shall be the next preceding Business Day), and such extension of time shall then be included in the computation of payment of interest, fees or other applicable amounts.

(b) Distributions by Administrative Agent. The Administrative Agent will distribute to the Lenders like amounts relating to payments made to the Administrative Agent for the account of the Lenders as follows: (i) if the payment is received by 1:00 p.m., Local Time, in immediately available funds, the Administrative Agent will make available to each relevant Lender on the same date, by wire transfer of immediately available funds, such Lender’s ratable share of such payment (based on the percentage that the amount of the relevant payment owing to such Lender bears to the total amount of such payment owing to all of the relevant Lenders), and (ii) if such payment is received after 1:00 p.m., Local Time, or in other than immediately available funds, the Administrative Agent will make available to each such Lender its ratable share of such payment by wire transfer of immediately available funds on the next succeeding Business Day (or in the case of uncollected funds, as soon as practicable after collected). If the Administrative Agent shall not have made a required distribution to the appropriate Lenders as required hereinabove after receiving a payment for the account of such Lenders, the Administrative Agent will pay to each such Lender, on demand, its ratable share of such payment with interest thereon at the Federal Funds Rate for each day from the date such amount was required to be disbursed by the Administrative Agent until the date repaid to such Lender.

(c) Payment Reliance. Unless the Administrative Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that suchthe Borrower will not make such payment, the Administrative Agent may assume that suchthe Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the

 

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Lenders, as the case may be, the amount due. In such event, if suchthe Borrower has not in fact made such payment, then each Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(d) Computations. All computations of interest and fees hereunder (including computations of the Reserve Requirement) shall be made on the basis of a year consisting of (i) in the case of interest on Base Rate Loans based on the prime commercial lending rate of the Person serving as the Administrative Agent and Multicurrency Revolving Loans or Multicurrency Swingline Loans denominated in Sterling or Canadian Dollars, 365/366 days, as the case may be, or (ii) in all other instances, 360 days; and in each case under (i) and (ii) above, with regard to the actual number of days (including the first day, but excluding the last day) elapsed.

(e) Application after Acceleration. Notwithstanding any other provision of this Agreement or any other Credit Document to the contrary, all amounts collected or received by the Administrative Agent or any Lender after acceleration of the Loans pursuant to Section 8.2 shall be applied as follows:

(i) first, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ and consultants’ fees irrespective of whether such fees are allowed as a claim after the occurrence of a Bankruptcy Event) of the Administrative Agent in connection with enforcing the rights of the Lenders under the Credit Documents;

(ii) second, to the payment of any fees owed to the Administrative Agent hereunder or under any other Credit Document;

(iii) third, to the payment of all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ and consultants’ fees irrespective of whether such fees are allowed as a claim after the occurrence of a Bankruptcy Event) of each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise with respect to the Obligations owing to such Lender;

(iv) fourth, to the payment of all of the Obligations consisting of accrued fees and interest (including fees incurred and interest accruing at the then applicable rate after the occurrence of a Bankruptcy Event irrespective of whether a claim for such fees incurred and interest accruing is allowed in such proceeding);

(v) fifth, to the payment of the outstanding principal amount of the Obligations (including the payment of any outstanding Reimbursement Obligations and the obligation to cash collateralize Letter of Credit Exposure);

(vi) sixth, to the payment of all other Obligations and other obligations that shall have become due and payable under the Credit Documents and not repaid; and

 

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(vii) seventh, to the payment of the surplus (if any) to whomever may be lawfully entitled to receive such surplus.

In carrying out the foregoing, (x) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category, and (y) all amounts shall be apportioned ratably among the Lenders (and Hedge Parties, as applicable) in proportion to the amounts of such principal, interest, fees or other Obligations owed to them respectively pursuant to clauses (iii) through (vii) above.

2.13 Recovery of Payments.

(a) From BorrowersBorrower. EachThe Borrower agrees that to the extent suchthe Borrower makes a payment or payments to or for the account of the Administrative Agent, the Issuing Lender or any Lender, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Law (whether as a result of any demand, settlement, litigation or otherwise), then, to the extent of such payment or repayment, the Obligation intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been received.

(b) From Lenders. If any amounts distributed by the Administrative Agent to any Lender are subsequently returned or repaid by the Administrative Agent to athe Borrower, its representative or successor in interest, or any other Person, whether by court order, by settlement approved by the Lender in question, or pursuant to applicable Requirements of Law, such Lender will, promptly upon receipt of notice thereof from the Administrative Agent, pay the Administrative Agent such amount. If any such amounts are recovered by the Administrative Agent from athe Borrower, its representative or successor in interest or such other Person, the Administrative Agent will redistribute such amounts to the Lenders on the same basis as such amounts were originally distributed.

2.14 Pro Rata Treatment.

(a) General. Except in the case of Swingline Loans, all fundings, continuations and conversions of Loans of any Class shall be made by the Lenders pro rata on the basis of their respective Commitments of such Class (in the case of the funding of Loans of such Class pursuant to Section 2.2) or on the basis of their respective outstanding Loans of such Class (in the case of continuations and conversions of Loans of such Class pursuant to Section 2.11, or in the event the Commitments for Loans of such Class have expired or have been terminated), as the case may be from time to time. All payments on account of principal of or interest on any Loans, fees or any other Obligations owing to or for the account of any one or more Lenders shall be apportioned ratably among such Lenders in proportion to the amounts of such principal, interest, fees or other Obligations owed to them respectively.

(b) Sharing of Payments. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such Obligations greater

 

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than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such fact and (ii) purchase (for cash at face value) participations in the Loans and such other Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that (x) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (y) the provisions of this Section 2.14 shall not be construed to apply to (A) any payment made by athe Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, Swingline Loans or Letters of Credit to any assignee or participant, other than to athe Borrower or any Subsidiary thereof (as to which the provisions of this Section 2.14(b) shall apply). EachThe Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against suchthe Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of suchthe Borrower in the amount of such participation. If under any applicable bankruptcy, insolvency or similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 2.14(b) applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 2.14(b) to share in the benefits of any recovery on such secured claim.

2.15 Increased Costs; Change in Circumstances; Illegality.

(a) Increased Costs Generally. If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except the Reserve Requirement reflected in the LIBOR Rate) or the Issuing Lender;

(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii) impose on any Lender or the Issuing Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR Loans made by such Lender or any Letter of Credit or participation therein, excluding costs or expenses to the extent reflected in the Reserve Requirement;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of continuing, converting, making or maintaining any LIBOR Loan (or of maintaining its obligation to continue, convert or make any such Loan) by an amount deemed by such Lender

 

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or such other Recipient to be material, or to increase the cost to such Lender, the Issuing Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit) by an amount deemed by such Lender, the Issuing Lender or such other Recipient to be material, or to reduce the amount of any sum received or receivable by such Lender, the Issuing Lender or such other Recipient hereunder (whether of principal, interest or any other amount) by an amount deemed by such Lender, the Issuing Lender or such other Recipient to be material, then, upon request of such Lender, the Issuing Lender or such other Recipient, the applicable Borrower will pay to such Lender, the Issuing Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

(b) Capital Requirements. If any Lender or the Issuing Lender determines that any Change in Law affecting such Lender or the Issuing Lender or any Lending Office of such Lender or such Lender’s or the Issuing Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Lender’s capital or on the capital of such Lender’s or the Issuing Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Lender, to a level below that which such Lender or such Issuing Lender or such Lender’s or the Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Lender’s policies and the policies of such Lender’s or the Issuing Lender’s holding company with respect to capital adequacy and liquidity) by an amount deemed by such Lender or the Issuing Lender, as the case may be, to be material, then from time to time the Parent Borrower will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company for any such reduction suffered.

(c) Certificates for Reimbursement. A certificate of a Lender or the Issuing Lender (which shall set forth the basis for such amount and the calculation thereof in reasonable detail) setting forth the amount or amounts necessary to compensate such Lender or Issuing Lender or its respective holding company, as specified in Section 2.15(a) or 2.15(b), and delivered to the applicable Borrower shall be conclusive absent manifest error. The applicable Borrower shall pay such Lender or the Issuing Lender, as the case may be, the amount shown as due on any such certificate within 15 Business Days after receipt thereof.

(d) Delay in Requests. Failure or delay on the part of any Lender or the Issuing Lender to demand compensation pursuant to the foregoing provisions of this Section 2.15 shall not constitute a waiver of such Lender’s or the Issuing Lender’s right to demand such compensation; provided that the BorrowersBorrower shall not be required to compensate a Lender or the Issuing Lender pursuant to the foregoing provisions of this Section 2.15 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or the Issuing Lender, as the case may be, notifies the applicable Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).

 

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(e) Inadequacy or Indeterminacy. If, on or prior to the first day of any Interest Period, (y) the Administrative Agent shall have determined in good faith that adequate and reasonable means do not exist for ascertaining the applicable LIBOR Rate for such Interest Period or (z) the Administrative Agent shall have received written notice from the Required Lenders of their determination in good faith that the rate of interest referred to in the definition of “LIBOR Rate” upon the basis of which the Adjusted LIBOR Rate for LIBOR Loans for such Interest Period is to be determined will not adequately and fairly reflect the cost to such Lenders of making or maintaining LIBOR Loans during such Interest Period, the Administrative Agent will forthwith so notify the BorrowersBorrower and the Lenders. Upon such notice, (i) all then outstanding LIBOR Loans shall automatically, on the expiration date of the respective Interest Periods applicable thereto (unless then repaid in full), be converted into Base Rate Loans, (ii) the obligation of the Lenders to make, to convert Base Rate Loans into, or to continue, LIBOR Loans shall be suspended (including pursuant to the Borrowing to which such Interest Period applies), and (iii) any Notice of Borrowing or Notice of Conversion/Continuation given at any time thereafter with respect to LIBOR Loans shall be deemed to be a request for Base Rate Loans, in each case until the Administrative Agent or the Required Lenders, as the case may be, shall have determined that the circumstances giving rise to such suspension no longer exist (and the Required Lenders, if making such determination, shall have so notified the Administrative Agent), and the Administrative Agent shall have so notified the BorrowersBorrower and the Lenders.

(f) Illegality. Notwithstanding any other provision in this Agreement, if, at any time after the date hereof and from time to time, any Lender shall have determined in good faith that the introduction of or any change in any applicable law, rule or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance with any guideline or request from any such Governmental Authority (whether or not having the force of law), has or would have the effect of making it unlawful for such Lender to make or to continue to make or maintain LIBOR Loans, such Lender will forthwith so notify the Administrative Agent and the BorrowersBorrower. Upon such notice, (i) each of such Lender’s then outstanding LIBOR Loans shall automatically, on the expiration date of the respective Interest Period applicable thereto (or, to the extent any such LIBOR Loan may not lawfully be maintained as a LIBOR Loan until such expiration date, upon such notice) and to the extent not sooner prepaid, be converted into a Base Rate Loan, (ii) the obligation of such Lender to make, to convert Base Rate Loans into, or to continue, LIBOR Loans shall be suspended (including pursuant to any Borrowing for which the Administrative Agent has received a Notice of Borrowing but for which the Borrowing Date has not arrived), and (iii) any Notice of Borrowing or Notice of Conversion/Continuation given at any time thereafter with respect to LIBOR Loans shall, as to such Lender, be deemed to be a request for a Base Rate Loan, in each case until such Lender shall have determined that the circumstances giving rise to such suspension no longer exist and shall have so notified the Administrative Agent, and the Administrative Agent shall have so notified the BorrowersBorrower.

(g) Similar Treatment. Notwithstanding the foregoing Sections 2.15(a), 2.15(b), and 2.15(f), no Lender or Recipient shall impose any costs specified therein or make any request for compensation pursuant thereto (or be entitled to any such additional costs) unless such Lender or Recipient is then generally imposing such cost upon or requesting such compensation from borrowers that are financial institutions in connection with similar credit facilities containing similar provisions and at the time of such request certifies to the Parent Borrower to the effect of the foregoing.

 

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2.16 Taxes.

(a) Issuing Lender. For purposes of this Section 2.16, the term “Lender” includes any Issuing Lender.

(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of athe Borrower under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.16) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c) Payment of Other Taxes by the BorrowersBorrower. EachThe Borrower (without duplication of Section 2.16(b)) shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent or such other Recipient timely reimburse it for the payment of, any Other Taxes.

(d) Indemnification by the BorrowersBorrower. EachThe Borrower, as applicable, shall severally indemnify each Recipient, within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.16) payable or paid by such Recipient (whether directly or pursuant to Section 2.16(e)) or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto. A certificate as to the amount of such payment or liability (which shall be in reasonable detail) delivered to the Parent Borrower by a Lender (with a copy to the Administrative Agent), or by the Primary Administrative Agent or Backup Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. The Primary Administrative Agent, Backup Administrative Agent and each Lender agrees to cooperate with any reasonable request made by athe Borrower in respect of a claim of a refund in respect of Indemnified Taxes as to which it has been indemnified by suchthe Borrower or with respect to which suchthe Borrower has paid additional amounts pursuant to this Section 2.16(d) if (i) suchthe Borrower has agreed in writing to pay all of the Primary Administrative Agent’s, Backup Administrative Agent’s or such Lender’s reasonable out-of-pocket costs and expenses relating to such claim, (ii) the Primary Administrative Agent, Backup Administrative Agent or such Lender determines, in its good faith judgment, that it would not be disadvantaged, unduly burdened or prejudiced as a result of such claim and (iii) suchthe Borrower furnishes, upon request of the

 

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Primary Administrative Agent, Backup Administrative Agent or such Lender, an opinion of tax counsel (such opinion and such counsel to be reasonably acceptable to the Primary Administrative Agent, Backup Administrative Agent or such Lender) to the effect that such Indemnified Taxes were wrongly or illegally imposed. This Section 2.16(d) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it reasonably deems confidential) to athe Borrower or any other Person.

(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Primary Administrative Agent and the Backup Administrative Agent, within 10 Business Days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that athe Borrower has not already indemnified the Primary Administrative Agent or the Backup Administrative Agent for such Indemnified Taxes and without limiting the obligation of the BorrowersBorrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Primary Administrative Agent or the Backup Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Primary Administrative Agent or the Backup Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Primary Administrative Agent and the Backup Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Primary Administrative Agent or the Backup Administrative Agent to such Lender from any other source against any amount due to the Primary Administrative Agent or the Backup Administrative Agent under this Section 2.16(e).

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by athe Borrower to a Governmental Authority pursuant to this Section 2.16, suchthe Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(g) Status of Lenders.

(i) Any Lender that is entitled to an exemption from, or reduction in the rate of, the imposition, deduction or withholding of any Indemnified Taxes with respect to payments made under any Credit Document shall deliver to the Parent Borrower and the Administrative Agent, at the time or times reasonably requested by the Parent Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Parent Borrower or the Administrative Agent as will permit such payments to be made without imposition, deduction or withholding of such Indemnified Taxes or at a reduced rate. In addition, any Lender, if reasonably requested by the Parent Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Parent Borrower or the Administrative Agent as will enable the Parent Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two

 

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sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.16(g)(ii)(A), 2.16(g)(ii)(B) or 2.16(g)(ii)(D)) shall not be required if such Lender is not legally able to complete, execute and submit such documentation.

(ii) Without limiting the generality of the foregoing, in the event that athe Borrower is a U.S. BorrowerPerson,

(A) any Lender that is a U.S. Person shall deliver to suchthe Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of suchthe Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to suchthe Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of suchthe Borrower or the Administrative Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2) executed originals of IRS Form W-8ECI;

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of suchthe Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN-E; or

(4) to the extent a Foreign Lender is not the beneficial owner of a payment received under any of the Credit Documents, executed originals of IRS Form W-8IMY, accompanied by IRS Form

 

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W-8ECI, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to suchthe Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of suchthe Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit suchthe Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Credit Document would be subject to Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to suchthe Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by suchthe Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by suchthe Borrower or the Administrative Agent as may be necessary for suchthe Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.16(g)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Parent Borrower and the Administrative Agent in writing of its legal inability to do so.

(h) Treatment of Certain Refunds. If any party determines, in its reasonable discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.16 (including by the payment of additional amounts pursuant to this Section 2.16) or that it has obtained, utilized and retained a Tax credit or relief which is attributable to such indemnity payment or additional amount, it shall pay to the indemnifying party an amount equal to such refund or the amount of such credit or relief (but only

 

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to the extent of indemnity payments made under this Section 2.16 with respect to the Taxes giving rise to such refund, credit or relief), net of all reasonable out-of-pocket expenses of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund, credit or relief). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.16(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay an amount in respect of such refund, credit or relief to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.16(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.16(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund, credit or relief had never been paid. This Section 2.16(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it reasonably deems confidential) to the indemnifying party or any other Person.

(i) U.K. Borrower Provisions.[Reserved].

(i) Notwithstanding anything to the contrary set forth in this Section 2.16, the Subsidiary Borrower is not required to pay additional amounts to a Lender (other than a new Lender pursuant to a request by a Borrower under Section 2.18) pursuant to this Section 2.16 in respect of any Tax that is required by the United Kingdom to be withheld from a payment of interest on a Loan made to the Subsidiary Borrower if at the time the payment falls due (i) the relevant Lender is not a UK Qualifying Lender and that Tax would not have been required to be withheld had that Lender been a UK Qualifying Lender unless the reason that that Lender is not a UK Qualifying Lender is a change after the date on which it became a Lender under this Agreement in (or in the interpretation, administration or application of) any law or double taxation agreement or any published practice or published concession of any relevant Governmental Authority; or (ii) the relevant Lender is a UK Treaty Lender and the Subsidiary Borrower is able to demonstrate that that Tax is required to be withheld as a result of the failure of the relevant Lender to comply with its obligations under this Section 2.16(i)(i). Any Lender which is a Lender in respect of a Loan to the Subsidiary Borrower and which is not, or ceases to be, a UK Qualifying Lender, for whatever reason, shall promptly notify the Administrative Agent and the Subsidiary Borrower. In relation to all payments to be made to a UK Treaty Lender by the Subsidiary Borrower, such Lender shall cooperate with the Subsidiary Borrower in completing any procedural formalities necessary for the Subsidiary Borrower to obtain authorization to make such a payment without a deduction or withholding for or on account of UK Taxes including, to the extent applicable, making and filing an appropriate application for relief under a double taxation agreement. Nothing in this Section 2.16(i)(i) shall require a UK Treaty Lender to: (a) register under the HMRC DT Treaty Passport Scheme; or (b) apply the HMRC DT Treaty Passport Scheme to any Loan if it has so registered.

(ii) If a UK Treaty Lender wishes the HMRC DT Treaty Passport Scheme to apply to this Agreement, it shall include an indication to that effect by including its scheme reference number and jurisdiction of tax residence opposite its name in Schedule 1.1(a) if

 

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it is a party hereto on the Closing Date or, in the case where it becomes a Lender after the Closing Date or it is a party hereto on the Closing Date and obtains a scheme reference number after the Closing Date, it shall provide written notice to that effect to the Subsidiary Borrower (including its scheme reference number and jurisdiction of tax residence in such notice) and the Subsidiary Borrower shall file a duly completed DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of the Closing Date or, as applicable, promptly following receipt of such notice (and in any event no later than the date 30 days after receipt thereof); provided that in the case of a Lender party hereto on the Closing Date that does not obtain its scheme reference number until after the Closing Date, such notice shall be received by the Subsidiary Borrower prior to the date 21 days after the Closing Date and, for the avoidance of doubt, if such notice is received by the Subsidiary Borrower after the date 21 days after the Closing Date, then the parties agree that the HMRC DT Treaty Passport Scheme shall not apply to this Agreement in respect of such Lender.

(j) Survival. Each party’s obligations under this Section 2.16 shall survive the resignation or replacement of the Primary Administrative Agent or the Backup Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

2.17 Compensation. EachThe Borrower will compensate each Lender upon demand for all losses, expenses and liabilities (including any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund or maintain LIBOR Loans) that such Lender may incur or sustain (i) if for any reason (other than a default by such Lender) a Borrowing or continuation of, or conversion into, a LIBOR Loan to suchthe Borrower does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation given by suchthe Borrower, (ii) if any repayment, prepayment or conversion of any LIBOR Loan to suchthe Borrower occurs on a date other than the last day of an Interest Period applicable thereto (including as a consequence of any assignment made pursuant to Section 2.18(a) or any acceleration of the maturity of the Loans pursuant to Section 8.2), (iii) if any prepayment of any LIBOR Loan to suchthe Borrower is not made on any date specified in a notice of prepayment given by suchthe Borrower (including any notice that is thereafter revoked in accordance with Section 2.7(a)) or (iv) as a consequence of any other failure by suchthe Borrower to make any payments with respect to any LIBOR Loan to suchthe Borrower when due hereunder. Calculation of all amounts payable to a Lender under this Section 2.17 shall be made as though such Lender had actually funded its relevant LIBOR Loan through the purchase of a Eurodollar deposit bearing interest at the LIBOR Rate in an amount equal to the amount of such LIBOR Loan, having a maturity comparable to the relevant Interest Period; provided, however, that each Lender may fund its LIBOR Loans in any manner it sees fit and the foregoing assumption shall be utilized only for the calculation of amounts payable under this Section 2.17. A certificate (which shall be in reasonable detail) showing the bases for the determinations set forth in this Section 2.17 by any Lender as to any additional amounts payable pursuant to this Section 2.17 shall be submitted by such Lender to the applicable Borrower either directly or through the Administrative Agent. Determinations set forth in any such certificate made in good faith for purposes of this Section 2.17 of any such losses, expenses or liabilities shall be conclusive absent manifest error.

 

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2.18 Replacement of Lenders; Mitigation of Costs.

(a) Replacement of Lenders. The Parent Borrower may, at any time at its sole expense and effort, require any Lender (i) that is a ThirdFifth Amendment Non-Consenting Lender, or (ii) that has requested compensation from athe Borrower under Sections 2.15(a) or 2.15(b) or payments from athe Borrower under Section 2.16, or (iii) the obligation of which to make or maintain LIBOR Loans or any funded participations in Letters of Credit not refinanced through a Borrowing of Revolving Loans has been suspended under Section 2.15(f) or (iv) that is a Defaulting Lender or a Non-Consenting Lender, in any case upon notice to such Lender and the Administrative Agent, to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.6), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.15 or 2.16) and obligations under this Agreement and the related Credit Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i) the Administrative Agent shall have received the assignment fee specified in Section 10.6(b)(iv), which fee shall be payable by the Parent Borrower or such assignee;

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and any funded participations in Letters of Credit and Swingline Loans not refinanced through the Borrowing of Revolving Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Credit Documents (including any amounts under Section 2.17) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the applicable Borrower (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a request for compensation under Section 2.15(a) or 2.15(b) or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments thereafter;

(iv) in the case of an assignment of the interests, rights and obligations under this Agreement and the related Credit Documents of a ThirdFifth Amendment Non-Consenting Lender, such assignee shall have (or shall) approve and agree in writing to the ThirdFifth Amendment;

(v) in the case of an assignment of the interests, rights and obligations under this Agreement and the related Credit Documents of a Non-Consenting Lender, such assignee shall have approved (or shall approve) such consent, waiver or amendment that resulted in the Non-Consenting Lender becoming a Non-Consenting Lender; and

(vi) such assignment does not conflict with applicable Requirements of Law.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Parent Borrower to require such assignment and delegation cease to apply.

 

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(b) Designation of a Different Lending Office. If any Lender requests compensation under Section 2.15(a) or 2.15(b), or athe Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, or if any Lender gives a notice pursuant to Section 2.15(f), then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15(a), 2.15(b) or 2.16, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 2.15(f), as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Parent Borrower, on behalf of the Borrowers, hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment.

2.19 Letters of Credit.

(a) Issuance. Subject to and upon the terms and conditions herein set forth, so long as no Default or Event of Default has occurred and is continuing, the Issuing Lender will, at any time and from time to time on and after the Closing Date and prior to the earlier of (y) the Letter of Credit Maturity Date and (z) the Final Termination Date, and upon request by the applicable Borrower in accordance with the provisions of Section 3.2, (i) in reliance on the agreements of the Dollar Revolving Lenders set forth in Sections 2.19(c) and 2.19(e), issue for the account of the Parent Borrower or any of its Subsidiaries under the Dollar Revolving Commitments one or more irrevocable standby letters of credit denominated in Dollars and in a form customarily used or otherwise approved by the Issuing Lender (collectively with the Existing Letters of Credit, and, in each case, with all amendments, modifications and supplements thereto, substitutions therefor and renewals and restatements thereof, the “Dollar Letters of Credit”) and (ii) in reliance on the agreements of the Multicurrency Revolving Lenders set forth in Sections 2.19(c) and 2.19(e), issue for the account of the Parent Borrower or any of its Subsidiaries under the Multicurrency Revolving Commitments one or more irrevocable standby letters of credit denominated in Dollars or any Foreign Currency and in a form customarily used or otherwise approved by the Issuing Lender (with all amendments, modifications and supplements thereto, substitutions therefor and renewals and restatements thereof, the “Multicurrency Letters of Credit”, and collectively with the Dollar Letters of Credit, the “Letters of Credit”). The Stated Amount of each Letter of Credit shall not be less than $100,000.00 or such lesser amount acceptable to the Issuing Lender (other than with respect to an Existing Letter of Credit). Notwithstanding the foregoing:

(i) no Dollar Letter of Credit shall be issued if, upon issuance, the aggregate Stated Amount of all Dollar Letters of Credit outstanding would exceed the Dollar L/C Commitment;

(ii) no Dollar Letter of Credit shall be issued if the Stated Amount upon issuance when added to the Aggregate Dollar Revolving Credit Exposure, would exceed the aggregate Dollar Revolving Commitments at such time;

 

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(iii) no Multicurrency Letter of Credit shall be issued if, upon issuance, the aggregate Stated Amount of all Multicurrency Letters of Credit outstanding would exceed the Multicurrency L/C Commitment;

(iv) no Multicurrency Letter of Credit shall be issued if the Stated Amount upon issuance when added to the Aggregate Multicurrency Revolving Credit Exposure, would exceed the aggregate Multicurrency Revolving Commitments at such time;

(v) notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, or otherwise will benefit, any Subsidiary of the Parent Borrower (other than a Borrower), such, the Borrower requesting such Letter of Credit shall be obligated to reimburse the Issuing Lender hereunder for any and all drawings under such Letter of Credit (and eachthe Borrower hereby acknowledges that the issuance of Letters of Credit for the benefit of such Persons inures to the benefit of suchthe Borrower and that suchthe Borrower’s business derives substantial benefits from the businesses of such Persons);

(vi) no Letter of Credit shall be issued that by its terms expires later than the Letter of Credit Maturity Date or, in any event, more than one year after its date of issuance; provided, however, that a Letter of Credit may, if requested by athe Borrower, provide by its terms, and on terms acceptable to the Issuing Lender, for renewal for successive periods of one year or less (but not beyond the Letter of Credit Maturity Date), unless and until the Issuing Lender shall have delivered a notice of nonrenewal to the beneficiary of such Letter of Credit; and

(vii) the Issuing Lender shall be under no obligation to issue any Letter of Credit if, at the time of such proposed issuance, (A) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any Requirement of Law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction or reserve or capital requirement (for which the Issuing Lender is not otherwise compensated) not in effect on the Closing Date, or any unreimbursed loss, cost or expense that was not applicable, in effect or known to the Issuing Lender as of the Closing Date and that the Issuing Lender in good faith deems material to it, (B) the Issuing Lender shall have actual knowledge, or shall have received notice from any Lender, prior to the issuance of such Letter of Credit that one or more of the conditions specified in Section 3.2 are not then satisfied (or have not been waived in writing as required herein) or that the issuance of such Letter of Credit would violate the provisions of Section 2.19(a), (C) with respect to any Dollar Letter of Credit, any Dollar Revolving Lender is at such time a Defaulting Lender hereunder, unless the aggregate Dollar Letter of Credit Exposure of such Lender has been reallocated pursuant to Section 2.21(a)(iv) and any amount not reallocated has been cash collateralized pursuant to Section 2.21(a)(v) or the Issuing Lender has entered into other satisfactory arrangements with the Parent Borrower or such Lender to eliminate the Issuing Lender’s risk with respect

 

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to such Lender, or (D) with respect to any Multicurrency Letter of Credit, any Multicurrency Revolving Lender is at such time a Defaulting Lender hereunder, unless the aggregate Multicurrency Letter of Credit Exposure of such Lender has been reallocated pursuant to Section 2.21(a)(iv) and any amount not reallocated has been cash collateralized pursuant to Section 2.21(a)(v) or the Issuing Lender has entered into other satisfactory arrangements with the BorrowersBorrower or such Lender to eliminate the Issuing Lender’s risk with respect to such Lender.

(b) Notices. Whenever athe Borrower desires the issuance of a Letter of Credit, suchthe Borrower will give the Issuing Lender written notice with a copy to the Administrative Agent not later than 12:00 noon, Charlotte, North Carolina time, three Business Days (or such shorter period as is acceptable to the Issuing Lender in any given case) prior to the requested date of issuance thereof. Each such notice (each, a “Letter of Credit Notice”) shall be irrevocable, shall be given in the form of Exhibit B-4 and shall specify (i) the requested date of issuance, which shall be a Business Day, (ii) whether the Letter of Credit shall be a Dollar Letter of Credit or a Multicurrency Letter of Credit, (iii) the requested Stated Amount and expiry date of the Letter of Credit, and (iv) the name and address of the requested beneficiary or beneficiaries of the Letter of Credit. SuchThe Borrower will also complete any application procedures and documents reasonably required by the Issuing Lender in connection with the issuance of any Letter of Credit. Upon its issuance of any Letter of Credit, the Issuing Lender will promptly notify the Administrative Agent of such issuance, and the Administrative Agent will give prompt notice thereof to each Dollar Revolving Lender or Multicurrency Revolving Lender, as applicable. The renewal or extension of any outstanding Letter of Credit shall, for purposes of this Section 2.19, be treated in all respects as the issuance of a new Letter of Credit.

(c) Participations. Immediately upon the issuance of any Dollar Letter of Credit or Multicurrency Letter of Credit, the Issuing Lender shall be deemed to have sold and transferred to each Dollar Revolving Lender or Multicurrency Revolving Lender, respectively, and each Dollar Revolving Lender or Multicurrency Lender, as applicable, shall be deemed irrevocably and unconditionally to have purchased and received from the Issuing Lender, without recourse or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Issuing Lender), an undivided interest and participation, pro rata (based on the proportion that its Dollar Revolving Commitment bears to the aggregate Dollar Revolving Commitments or its Multicurrency Revolving Commitment bears to the aggregate Multicurrency Revolving Commitments, as applicable, at such time, or if the Dollar Revolving Commitments or Multicurrency Revolving Commitments, as applicable, have been terminated, based on the proportion that its Dollar Revolving Commitment bears to the aggregate Dollar Revolving Commitments or its Multicurrency Revolving Commitment bears to the aggregate Multicurrency Revolving Commitments, as applicable, in each case immediately prior to the termination thereof, giving effect to any subsequent assignments), in such Letter of Credit, each drawing made thereunder and the obligations of the applicable Borrower under this Agreement with respect thereto and any guaranty pertaining thereto; provided, however, that the fees relating to Letters of Credit described in Sections 2.9(ba)(iivii) and 2.9(ba)(iiiviii) shall be payable directly to the Issuing Lender as provided therein, and the other Revolving Lenders shall have no right to receive any portion thereof. In consideration and in furtherance of the foregoing, (i) each Dollar Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Lender, such Dollar Revolving Lender’s pro rata share

 

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(determined as provided above) of each Dollar Reimbursement Obligation not reimbursed by the Parent Borrower on the date due as provided in Section 2.19(d) or through the Borrowing of Dollar Revolving Loans as provided in Section 2.19(e) (because the conditions set forth in Section 3.2 cannot be satisfied, or for any other reason), or of any reimbursement payment required to be refunded to the Parent Borrower for any reason, and (ii) each Multicurrency Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Lender, such Multicurrency Revolving Lender’s pro rata share (determined as provided above) of each Multicurrency Reimbursement Obligation not reimbursed by the applicable Borrower on the date due as provided in Section 2.19(d) or, with respect to a Multicurrency Letter of Credit denominated in Dollars, through the Borrowing of Multicurrency Revolving Loans as provided in Section 2.19(e) (because the conditions set forth in Section 3.2 cannot be satisfied, or for any other reason), or of any reimbursement payment required to be refunded to athe Borrower for any reason. Upon any change in the Commitments of any of the Revolving Lenders, with respect to all outstanding Letters of Credit and Reimbursement Obligations there shall be an automatic adjustment to the applicable participations pursuant to this Section 2.19(c) to reflect the new pro rata shares of the assigning Revolving Lender and the assignee. Each Lender’s obligation to make payment to the Issuing Lender pursuant to this Section 2.19(c) shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including the termination of the Dollar Revolving Commitments or Multicurrency Revolving Commitments or the existence of any Default or Event of Default, and each such payment shall be made without any offset, abatement, reduction or withholding whatsoever. In the event any applicable Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.19(c), the Issuing Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Issuing Lender until the date such amount is made available to the Issuing Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Issuing Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Issuing Lender in connection with the foregoing.

(d) Reimbursement. EachThe Borrower hereby agrees to reimburse the Issuing Lender by making payment to the Administrative Agent, for the account of the Issuing Lender, in immediately available funds, for any payment made by the Issuing Lender under any Letter of Credit issued for the account of suchthe Borrower or its Subsidiaries (each such amount so paid until reimbursed, together with interest thereon payable as provided hereinbelow, with respect to a Dollar Letter of Credit , a “Dollar Reimbursement Obligation”, and with respect to a Multicurrency Letter of Credit, a “Multicurrency Reimbursement Obligation”, each a “Reimbursement Obligation”) immediately upon, and in any event on the same Business Day as, the making of such payment by the Issuing Lender if notice thereof is received prior to 11:00 a.m., Charlotte, North Carolina time or the Business Day following the date of such notice if notice is received after such time or on a day that is not a Business Day (provided that any such Reimbursement Obligation shall be deemed timely satisfied (but nevertheless subject to the payment of interest thereon as provided hereinbelow) if such payment is not received from athe Borrower in accordance with the foregoing and is satisfied pursuant to a Borrowing of Dollar Revolving Loans or Multicurrency Revolving Loans, as applicable, made on the date of such payment by the Issuing Lender, as set forth more completely in Section 2.19(e)), together with interest on the amount so paid by the Issuing Lender, to the extent not reimbursed prior to 2:00 p.m.,

 

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Charlotte, North Carolina time, on the date of such payment or disbursement, for the period from the date of the respective payment to the date the Reimbursement Obligation created thereby is satisfied, (i) at the Adjusted Base Rate as in effect from time to time during such period with respect to Dollar Letters of Credit and Multicurrency Letters of Credit denominated in Dollars and (ii) at the Adjusted LIBOR Market Index Rate with respect to Multicurrency Letters of Credit denominated in any Foreign Currency, in each case, with such interest also to be payable on demand. The Issuing Lender will provide the Administrative Agent and the applicable Borrower with prompt notice of any payment or disbursement made or to be made under any Letter of Credit, although the failure to give, or any delay in giving, any such notice shall not release, diminish or otherwise affect suchthe Borrower’s obligations under this Section 2.19(d) or any other provision of this Agreement. The Administrative Agent will promptly pay to the Issuing Lender any such amounts received by it under this Section 2.19(d).

(e) Payment by Revolving Loans. In the event that the Issuing Lender makes any payment under any Dollar Letter of Credit or Multicurrency Letter of Credit denominated in Dollars and the applicable Borrower shall not have timely satisfied in full its Reimbursement Obligation to the Issuing Lender pursuant to Section 2.19(d), and to the extent that any amounts then held in the Cash Collateral Account established pursuant to Section 2.19(i) shall be insufficient to satisfy such Reimbursement Obligation in full, the Issuing Lender will promptly notify the Administrative Agent, and the Administrative Agent will promptly notify (i) each Dollar Revolving Lender, with respect to any such Dollar Letter of Credit, or (ii) each Multicurrency Revolving Lender, with respect to any such Multicurrency Letter of Credit, of such failure. If the Administrative Agent gives such notice prior to 12:00 noon, Charlotte, North Carolina time, on any Business Day, each Dollar Revolving Lender or Multicurrency Revolving Lender, as applicable, will make available to the Administrative Agent, for the account of the Issuing Lender, its pro rata share (based on the percentage of the aggregate Dollar Revolving Commitments represented by such Lender’s Dollar Revolving Commitment or the percentage of the aggregate Multicurrency Revolving Commitments represented by such Lender’s Multicurrency Revolving Commitment, as applicable) of the amount of such payment on such Business Day in immediately available funds. If the Administrative Agent gives such notice after 12:00 noon, Charlotte, North Carolina time, on any Business Day, each such Revolving Lender shall make its pro rata share of such amount available to the Administrative Agent on the next succeeding Business Day. If and to the extent any Revolving Lender shall not have so made its pro rata share of the amount of such payment available to the Administrative Agent as set forth above, such Revolving Lender agrees to pay to the Administrative Agent, for the account of the Issuing Lender, forthwith on demand such amount, together with interest thereon at the Federal Funds Rate for each day from such date until the date such amount is paid to the Administrative Agent. The failure of any Revolving Lender to make available to the Administrative Agent its pro rata share of any payment under any Letter of Credit shall not relieve any other Revolving Lender of its obligation hereunder to make available to the Administrative Agent its pro rata share of any payment under any Letter of Credit on the date required, as specified above, but no Revolving Lender shall be responsible for the failure of any other Revolving Lender to make available to the Administrative Agent such other Revolving Lender’s pro rata share of any such payment. Each such payment by a Revolving Lender under this Section 2.19(e) of its pro rata share of an amount paid by the Issuing Lender shall constitute a Dollar Revolving Loan or Multicurrency Revolving Loan, as applicable, by such Revolving Lender (the applicable Borrower being deemed to have given a timely Notice of Borrowing therefor) and shall be treated as such for all purposes of this Agreement; provided that for purposes

 

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of determining the aggregate Unutilized Dollar Revolving Commitments or aggregate Unutilized Multicurrency Revolving Commitments, as applicable, immediately prior to giving effect to the application of the proceeds of such Revolving Loans, the applicable Reimbursement Obligation being satisfied thereby shall be deemed not to be outstanding at such time. Each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.19(e) shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in Section 2.2(b); provided, however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.19(e) is subject to the conditions set forth in Section 3.2 (other than delivery by the applicable Borrower of a Notice of Borrowing).

(f) Payment to Revolving Lenders. Whenever the Issuing Lender receives a payment in respect of a Reimbursement Obligation as to which the Administrative Agent has received, for the account of the Issuing Lender, any payments from the Dollar Revolving Lenders or the Multicurrency Revolving Lenders pursuant to Section 2.19(c), the Issuing Lender will promptly pay to the Administrative Agent, and the Administrative Agent will promptly pay to each Dollar Revolving Lender or Multicurrency Revolving Lender, as applicable, that has paid its pro rata share thereof, in immediately available funds, an amount equal to such Dollar Revolving Lender’s or Multicurrency Revolving Lender’s, as applicable, ratable share (based on the proportionate amount funded by such Dollar Revolving Lender to the aggregate amount funded by all Dollar Revolving Lenders or the proportionate amount funded by such Multicurrency Revolving Lender to the aggregate amount funded by all Multicurrency Revolving Lenders, as applicable) of such Reimbursement Obligation.

(g) Existing Letters of Credit. The Parent Borrower and the Lenders agree that, on and as of the Closing Date, each Existing Letter of Credit issued for the account of the Parent Borrower or any of its Subsidiaries will be deemed continued for the account of such Person under this Agreement as a Dollar Letter of Credit issued pursuant to this Section 2.19.

(h) Obligations Absolute. The Reimbursement Obligations of eachthe Borrower shall be irrevocable, shall remain in effect until the Issuing Lender shall have no further obligations to make any payments or disbursements under any circumstances with respect to any Letter of Credit, and shall be absolute and unconditional, shall not be subject to counterclaim, setoff or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including any of the following circumstances:

(i) any lack of validity or enforceability of this Agreement, any of the other Credit Documents or any documents or instruments relating to any Letter of Credit;

(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations in respect of any Letter of Credit or any other amendment, modification or waiver of or any consent to departure from any Letter of Credit or any documents or instruments relating thereto, in each case whether or not suchthe Borrower has notice or knowledge thereof;

 

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(iii) the existence of any claim, setoff, defense or other right that suchthe Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Primary Administrative Agent, the Backup Administrative Agent, the Issuing Lender, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated hereby or any unrelated transactions (including any underlying transaction between suchthe Borrower and the beneficiary named in any such Letter of Credit);

(iv) any draft, certificate or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect (provided that such draft, certificate or other document appears on its face to comply with the terms of such Letter of Credit), any errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, facsimile or otherwise, or any errors in translation or in interpretation of technical terms;

(v) any defense based upon the failure of any drawing under a Letter of Credit to conform to the terms of such Letter of Credit (provided that any draft, certificate or other document presented pursuant to such Letter of Credit appears on its face to comply with the terms thereof), any nonapplication or misapplication by the beneficiary or any transferee of the proceeds of such drawing or any other act or omission of such beneficiary or transferee in connection with such Letter of Credit;

(vi) the exchange, release, surrender or impairment of any collateral or other security for the Obligations;

(vii) the occurrence of any Default or Event of Default; or

(viii) any other circumstance or event whatsoever, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, suchthe Borrower or any guarantor.

Any action taken or omitted to be taken by the Issuing Lender under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall be binding upon the BorrowersBorrower and each Lender and shall not create or result in any liability of the Issuing Lender to the BorrowersBorrower or any Lender. It is expressly understood and agreed that, for purposes of determining whether a wrongful payment under a Letter of Credit resulted from the Issuing Lender’s gross negligence or willful misconduct, (i) the Issuing Lender’s acceptance of documents that appear on their face to comply with the terms of such Letter of Credit, without responsibility for further investigation, regardless of any notice or information to the contrary, (ii) the Issuing Lender’s exclusive reliance on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect (so long as such document appears on its face to comply with the terms of such Letter of Credit), and whether or not any other statement or any

 

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other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever, and (iii) any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute gross negligence or willful misconduct of the Issuing Lender.

(i) Cash Collateral Account. At any time and from time to time (i) after the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the direction or with the consent of (A) with respect to any Dollar Letter of Credit, the Required Dollar Revolving Lenders, or (B) with respect to any Multicurrency Letter of Credit, the Required Multicurrency Revolving Lenders, shall, require the Parent Borrower (on behalf of itself or the Subsidiary Borrower, as applicable) to deliver to the Administrative Agent such additional amount of cash as is equal to 100% of the aggregate Stated Amount of all Letters of Credit at any time outstanding for the account of athe Borrower or its Subsidiaries (whether or not any beneficiary under any Letter of Credit shall have drawn or be entitled at such time to draw thereunder) and (ii) in the event of a prepayment under Section 2.6(b), the Administrative Agent will retain such amount as may then be required to be retained, such amounts to be held by the Administrative Agent in a cash collateral account (the “Cash Collateral Account”). The Parent Borrower hereby grants to the Administrative Agent, for the benefit of the Issuing Lender, the Dollar Revolving Lenders and the Multicurrency Revolving Lenders, a Lien upon and security interest in the Cash Collateral Account and all amounts held therein from time to time as security for Letter of Credit Exposure, and for application to the applicable Borrower’s Reimbursement Obligations as and when the same shall arise. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest on the investment of such amounts in Cash Equivalents, which investments shall be made at the direction of the Parent Borrower (unless an Event of Default shall have occurred and be continuing, in which case the determination as to investments shall be made at the option and in the discretion of the Administrative Agent), amounts in the Cash Collateral Account shall not bear interest. Interest and profits, if any, on such investments shall accumulate in such account. In the event of a drawing, and subsequent payment by the Issuing Lender, under any Letter of Credit at any time during which any amounts are held in the Cash Collateral Account, the Administrative Agent will deliver to the Issuing Lender an amount equal to the Reimbursement Obligation created as a result of such payment (or, if the amounts so held are less than such Reimbursement Obligation, all of such amounts) to reimburse the Issuing Lender therefor. Any amounts remaining in the Cash Collateral Account (including interest) after the expiration of all Letters of Credit and reimbursement in full of the Issuing Lender for all of its obligations thereunder shall be held by the Administrative Agent, for the benefit of the Parent Borrower or the Subsidiary Borrower, as applicable, to be applied against the Obligations of the BorrowersBorrower in such order and manner as the Administrative Agent may direct. If the Parent Borrower is required to provide Cash Collateral pursuant to Section 2.6(b), such amount (including interest), to the extent not applied as aforesaid, shall be returned to the Parent Borrower on demand; provided that, after giving effect to such return, (i) the Aggregate Dollar Revolving Credit Exposure would not exceed the aggregate Dollar Revolving Commitments at such time, (ii) the Aggregate Multicurrency Revolving Credit Exposure would not exceed the aggregate Multicurrency Revolving Commitments at such time and (iii) no Default or Event of Default shall have occurred and be continuing at such time. If the Parent Borrower is required to provide Cash Collateral as a result of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Parent Borrower within three Business Days after all Events of Default have been waived.

 

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(j) The Issuing Lender. The Issuing Lender shall act on behalf of the Dollar Revolving Lenders with respect to any Dollar Letters of Credit issued by it and the documents associated therewith and shall act on behalf of the Multicurrency Revolving Lenders with respect to any Multicurrency Letters of Credit issued by it and the documents associated therewith, and, in each case, the Issuing Lender shall have all of the rights, benefits and immunities (a) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by it in connection with Letters of Credit issued by it or proposed to be issued by it and any documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the Issuing Lender with respect to such acts or omissions, and (b) as additionally provided herein with respect to the Issuing Lender.

(k) Effectiveness. Notwithstanding any termination of the Commitments or repayment of the Loans, or both, the obligations of eachthe Borrower under this Section 2.19 shall remain in full force and effect until the Issuing Lender, the Dollar Revolving Lenders and the Multicurrency Revolving Lenders shall have no further obligations to make any payments or disbursements under any circumstances with respect to any Letter of Credit.

2.20 Increase in Commitments.

(a) General. From time to time on and after the Third Amendment Effective Date and prior to the Final Termination Date, the Parent Borrower may, upon at least 15 days’ notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Lenders), propose to increase the aggregate amount of the Revolving Commitments of any Class by an amount which (i) is not less than $100,000,000 or, if greater, an integral multiple of $10,000,000 in excess thereof, with respect to any such request and (ii) when aggregated with all prior and concurrent increases in the Revolving Commitments of all Classes pursuant to this Section 2.20, is not in excess of $1,000,000,000. The Parent Borrower may increase the aggregate amount of the Revolving Commitments by (x) having another lender or lenders (each, an “Additional Lender”) become party to this Agreement, (y) agreeing with any Lender (with the consent of such Lender in its sole discretion) to increase its Revolving Commitment hereunder (each, an “Increasing Lender”) or (z) a combination of the procedures described in clauses (x) and (y) of this sentence; provided that no Lender shall be obligated to increase its Revolving Commitment without its consent.

(b) Conditions. Any increase in the Revolving Commitments pursuant to this Section 2.20 shall be subject to satisfaction of the following conditions:

(i) EachThe Borrower shall deliver to the Administrative Agent a certificate dated as of the applicable increase date signed by an Authorized Officer of suchthe Borrower certifying and attaching the resolutions adopted by suchthe Borrower approving or consenting to such increase;

 

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(ii) Each of the representations and warranties contained in Article IV qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects, in each case on and as of such date of increase with the same effect as if made on and as of such date, both immediately before and after giving effect to such increase (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date); and

(iii) At the time of such increase, no Default or Event of Default shall have occurred and be continuing or would result from such increase.

(c) Effectiveness. Upon any increase in the amount of the Revolving Commitments pursuant to this Section 2.20 (each, an “Additional Commitment”):

(i) Each Additional Lender or Increasing Lender shall enter into a Joinder Agreement pursuant to which such Additional Lender and/or Increasing Lender shall, as of the effective date of such increase, undertake an Additional Commitment (or, in the case of an Increasing Lender, pursuant to which such Increasing Lender’s Revolving Commitment shall be increased in the agreed amount on such date) and such Additional Lender shall thereupon become (or, if an Increasing Lender, continue to be) a “Lender” for all purposes hereof.

(ii) EachThe Borrower shall, as applicable, in coordination with the Administrative Agent, repay all outstanding Loans of the affected Class and incur additional Loans of the affected Class from other Lenders of such Class in each case so that the Lenders participate in each Borrowing of such Class pro rata on the basis of their respective Revolving Commitments of such Class (after giving effect to any increase in the Revolving Commitments pursuant to this Section 2.20) and amounts payable under Section 2.17 as a result of the actions required to be taken under this Section 2.20 shall be paid in full by the applicable Borrower or Borrowers; and

(iii) If any such Additional Lender is a Foreign Lender, such Additional Lender shall deliver the forms required by Section 2.16.

2.21 Defaulting Lenders.

(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and in Section 10.5.

 

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(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 8.3 shall be applied at such time or times as may be determined by the Administrative Agent as follows:

(A) first, to the payment of any amounts owing by such Defaulting Lender to the Primary Administrative Agent or the Backup Administrative Agent hereunder;

(B) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Lender or the Swingline Lenders hereunder;

(C) third, to Cash Collateralize the Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.22;

(D) fourth, as the Parent Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent;

(E) fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.22;

(F) sixth, to the payment of any amounts owing to the Lenders, the Issuing Lender or the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lender or any Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;

(G) seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to athe Borrower as a result of any judgment of a court of competent jurisdiction obtained by suchthe Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and

(H) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;

provided that if (x) such payment is a payment of the principal amount of any Loans or obligations in respect of Letters of Credit which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made or the related Letters of Credit

 

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were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and obligations in respect of Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or obligations in respect of Letters of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Reimbursement Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments under the applicable Class without giving effect to Section 2.21(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees.

(A) No Defaulting Lender shall be entitled to receive any commitment fee payable pursuant to Section 2.9(a)(iii) or 2.9(a)(iv) for any period during which such Lender is a Defaulting Lender (and the Parent Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(B) No Defaulting Lender shall be entitled to receive the letter of credit fee pursuant to Sections 2.9(a)(v) and 2.9(ba)(ivi) for any period during which such Lender is a Defaulting Lender, except to the extent allocable to its ratable share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.22.

(C) With respect to any letter of credit fee not required to be paid to any Defaulting Lender pursuant to Section 2.21(a)(iii)(B), the Parent Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s Letter of Credit Exposure that has been reallocated to such Non-Defaulting Lender pursuant to Section 2.21(a)(iv), (y) pay to the Issuing Lender the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Lender’s Fronting Exposure to such Defaulting Lender and (z) not be required to pay the remaining amount of any such fee.

(iv) Reallocation of Participations to Reduce Fronting Exposure. (A) If such Defaulting Lender is a Dollar Revolving Lender, all or any part of such Defaulting Lender’s unfunded Dollar Letter of Credit Exposure and Dollar Swingline Exposure shall be reallocated among the Non-Defaulting Lenders that are Dollar Revolving Lenders in accordance with their respective ratable share of the Dollar Revolving Commitments (calculated without regard to such Defaulting Lender’s Dollar Revolving Commitment) but only to the extent that (x) the conditions set forth in Sections 3.2(b) and 3.2(c) are satisfied at the time of such reallocation as if such reallocation were the making of Dollar Revolving Loans or the issuance of a Dollar Letter of Credit (and, unless the Parent Borrower shall have otherwise notified the Administrative Agent at such time,

 

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the Parent Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the Dollar Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Dollar Revolving Commitment; and (B) if such Defaulting Lender is a Multicurrency Lender, all or any part of such Defaulting Lender’s unfunded Multicurrency Letter of Credit Exposure and Multicurrency Swingline Exposure shall be reallocated among the Non-Defaulting Lenders that are Multicurrency Revolving Lenders in accordance with their respective ratable share of the Multicurrency Revolving Commitments (calculated without regard to such Defaulting Lender’s Multicurrency Revolving Commitment) but only to the extent that (x) the conditions set forth in Sections 3.2(b) and 3.2(c) are satisfied at the time of such reallocation as if such reallocation were the making of Multicurrency Revolving Loans or the issuance of a Multicurrency Letter of Credit (and, unless the applicable Borrower shall have otherwise notified the Administrative Agent at such time, the BorrowersBorrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the Multicurrency Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Multicurrency Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v) Cash Collateral, Repayment of Swingline Loans. If the reallocation described in Section 2.21(a)(iv) cannot, or can only partially, be effected (x) first, the applicable Borrower shall prepay Dollar Swingline Loans or Multicurrency Swingline Loans, as the case may be, in an amount equal to the Swingline Lenders’ Fronting Exposure pro rata based on the Commitments of the Swingline Lenders and (y) second, the Parent Borrower (on behalf of itself or the Subsidiary Borrower, as applicable) shall Cash Collateralize the Issuing Lender’s Fronting Exposure in accordance with the procedures set forth in Section 2.22, in each case within one Business Day following the written request of the Administrative Agent and without prejudice to any right or remedy available to the applicable Borrower hereunder or under law.

(b) Defaulting Lender Cure. If the Parent Borrower, the Administrative Agent, the Swingline Lenders and the Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments of the applicable Class (without giving effect to Section 2.21(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of anythe Borrower while that Lender was a Defaulting Lender; provided further that (x) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender, and (y) such Lender shall be obligated to reimburse the other Lenders for any breakage expenses of the type described in Section 2.17 arising as a result of the foregoing.

 

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(c) New Swingline Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i) no Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that there will be no Fronting Exposure after giving effect to such Swingline Loan and (ii) the Issuing Lender shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

2.22 Cash Collateral.

(a) Generally. At any time that there shall exist a Defaulting Lender, within two Business Days following the written request of the Administrative Agent or the Issuing Lender (with a copy to the Administrative Agent), the Parent Borrower shall Cash Collateralize the Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.21(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than such Fronting Exposure.

(b) Grant of Security Interest. Each of the Parent Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Lender, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of obligations in respect of Letters of Credit, to be applied pursuant to Section 2.22(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Lender as herein provided, or that the total amount of such Cash Collateral is less than the Fronting Exposure of the Issuing Lender, the Parent Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the applicable Defaulting Lender).

(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.22 or Section 2.21 in respect of Letters of Credit shall be applied to the satisfaction of the applicable Defaulting Lender’s obligation to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(d) Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce the Issuing Lender’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.22 following (i) the elimination of such Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender) or (ii) the determination by the Administrative Agent and the Issuing Lender that there exists excess Cash Collateral; provided that, subject to Section 2.21, the Person providing Cash Collateral and the Issuing Lender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations.

 

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2.23 Loans to the Subsidiary Borrower; etc. [Reserved].

(a) Notwithstanding anything to the contrary contained herein or in any other Credit Document, no Loans shall be made to the Subsidiary Borrower on and after the Third Amendment Effective Date.

(b) In furtherance of the foregoing and notwithstanding anything to the contrary contained herein or in any other Credit Document, on and after the Third Amendment Effective Date, (i) the Subsidiary Borrower (A) shall not itself be able to request the issuance of Letters of Credit pursuant to Section 2.19 and (B) shall not have any obligations to reimburse the Issuing Lender under Section 2.19(d), which reimbursement obligations shall solely be the responsibility of the Parent Borrower, and (ii) any Loans required to be made by the Borrowers under Section 2.19(e) in connection with any outstanding Letters of Credit shall be made solely by the Parent Borrower; provided that the foregoing shall not otherwise prevent the Parent Borrower from requesting Letters of Credit pursuant to Section 2.19 for the account of the Subsidiary Borrower or any other Subsidiary.

ARTICLE III

CONDITIONS OF BORROWING

3.1 Conditions of Effectiveness and Initial Borrowing. The Closing Date shall occur upon the satisfaction of the following conditions precedent:[Reserved].

(a) The Administrative Agent shall have received the following, each of which shall be originals or telecopies or in an electronic format acceptable to the Administrative Agent (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the applicable Borrower, each dated as of the Closing Date and in such number of copies as the Administrative Agent shall have reasonably requested (or, in the case of certificates of governmental officials, a recent date prior to the Closing Date) and each in a form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:

(i) executed counterparts of this Agreement;

(ii) to the extent requested by any Lender in accordance with Section 2.4(d), a Note or Notes for such Lender, in each case duly completed in accordance with the provisions of Section 2.4(d) and executed by each applicable Borrower;

(iii) if any LIBOR Loans are to be borrowed prior to the third Business Day after the Closing Date by a Borrower, the Administrative Agent shall have received, three Business Days prior to the date such LIBOR Loans are to be borrowed, a pre-funding LIBOR indemnity letter from such Borrower and a completed Notice of Borrowing;

(iv) a certificate, signed by a Responsible Officer of the Parent Borrower, certifying (i) that both immediately before and after giving effect to the transactions contemplated hereby, (A) all representations and warranties of the Borrowers contained in this Agreement and the other Credit Documents qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects, in each

 

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case as of the Closing Date (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date) and (B) no Default or Event of Default has occurred and is continuing and (ii) the current Debt Ratings;

(v) a certificate of the secretary or an assistant secretary of each Borrower and the Guarantor certifying, as of the Closing Date, (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such Person, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of such Person, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Person, authorizing the execution, delivery and performance of the Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Person executing such other Credit Documents, and attaching all such copies of the documents described above; and attaching copies of all the documents referred to in clauses (i), (ii) and (iii) above; and (iv) for the Subsidiary Borrower only, confirming that borrowing under the Dollar Revolving Commitments and the Multicurrency Revolving Commitments would not cause any borrowing or similar limit binding on the Subsidiary Borrower to be exceeded;

(vi) a certificate as of a recent date of the good standing of the Parent Borrower and the Guarantor as of the Closing Date, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction;

(vii) the favorable opinions of (A) Shearman & Sterling, LLP, special counsel to the Parent Borrower, (B) Shearman & Sterling (London) LLP, foreign local counsel to the Subsidiary Borrower, and (C) in-house counsel to the Parent Borrower, in each case addressing such matters as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to the Administrative Agent; and

(viii) the Guaranty Agreement, dated as of the Closing Date, made by NYSE in favor of the Administrative Agent and the Lenders, duly executed by NYSE.

(b) All principal, interest and other amounts outstanding under the (i) Credit Agreement, dated as of November 9, 2011 (as amended by the First Amendment to Credit Agreement, dated as of September 27, 2013) among the Borrowers, IntercontinentalExchange, Inc., the lenders party thereto and Wells Fargo, as administrative agent, and (ii) Credit Agreement, dated as of July 12, 2013 (as amended by the First Amendment to Credit Agreement, dated as of September 27, 2013), between the Parent Borrower, the lenders party thereto and Wells Fargo, as administrative agent (collectively, the “Terminating Credit Facilities”), shall, substantially contemporaneously with the Closing Date, be paid in full, all commitments to extend credit under the agreements and instruments relating to the Terminating Credit Facilities shall be terminated, all letters of credit issued thereunder shall be terminated or cancelled (or deemed issued hereunder) and all guarantees relating thereto shall be terminated; and the Administrative Agent shall have received evidence of the foregoing satisfactory to it of such terminations.

 

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(c) The Borrowers shall have paid (i) to the Arrangers, the fees required under the Joint Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Wells Fargo Fee Letter, and (iii) to the extent invoiced to the Borrowers at least two Business Days prior to the Closing Date, all other reasonable and documented expenses of the Arrangers, the Administrative Agent and the Lenders required (to the extent otherwise agreed to by the Borrowers in writing) to be paid on or prior to the Closing Date (including reasonable and documented fees and expenses of counsel) in connection with this Agreement and the other Credit Documents.

(d) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of each Borrower, including wire transfer information, directing the payment of the proceeds of any Loans made hereunder.

(e) The Administrative Agent and the Lenders shall have received the Ineligible Assignees Letter, duly executed by the Parent Borrower.

(f) The Administrative Agent and the Lenders shall have received from the Borrowers all documentation and other information requested by the Administrative Agent or any Lender at least 2 Business Days prior to the Closing Date that is required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.

Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

3.2 Conditions of All Borrowings. The obligation of each Lender to make any Loans hereunder (excluding Revolving Loans made for the purpose of repaying Refunded Swingline Loans pursuant to Section 2.2(e) or for the purpose of paying unpaid Reimbursement Obligations pursuant to Section 2.19(e)), and the obligation of the Issuing Lender to issue, extend, increase or renew any Letters of Credit hereunder, is subject to the satisfaction of the following conditions precedent on the relevant Borrowing Date:

(a) The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.2(b), or (together with the applicable Swingline Lenders) a Notice of Swingline Borrowing in accordance with Section 2.2(d) or (together with the Issuing Lender) a Letter of Credit Notice in accordance with Section 2.19(b), as applicable;

 

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(b) Each of the representations and warranties of the BorrowersBorrower contained in Article IV (except the representations set forth in Sections 4.5 and 4.8 which shall only be made on the Closing Date and except the representations set forth in Section 4.13 which shall only be made in connection with any Borrowing made in accordance with Section 3.3) and in the other Credit Documents qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects, in each case on and as of such Borrowing Date (including the Closing Date, in the case of the any Loans made on the Closing Date hereunder) or such date of issuance, extension, increase or renewal of a Letter of Credit with the same effect as if made on and as of such date, both immediately before and after giving effect to the Loans to be made or the Letter of Credit to be issued, extended, increased or renewed on such date (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date); and

(c) No Default or Event of Default shall have occurred and be continuing on such date, both immediately before and after giving effect to the Loans to be made or Letter of Credit to be issued, extended, increased or renewed on such date.

Each giving of a Notice of Borrowing, a Notice of Swingline Borrowing or a Letter of Credit Notice, and the consummation of each Borrowing or issuance, extension, increase or renewal of a Letter of Credit, shall be deemed to constitute a representation by the BorrowersBorrower that the statements contained in Sections 3.2(b) and 3.2(c) are true, both as of the date of such notice or request and as of the relevant Borrowing Date or date of issuance, extension, increase or renewal.

3.3 Conditions of Borrowing for IDHC Acquisition. Notwithstanding anything to the contrary contained herein (including in Section 3.2) or in any other Credit Document, the obligation of each Lender to make any Revolving Loans the proceeds of which are used to finance a portion of the consideration paid by the Parent Borrower to consummate the IDHC Acquisition and the other transactions contemplated thereby is subject to the satisfaction of the following conditions precedent, and only the following conditions precedent, on the relevant Borrowing Date:[Reserved].

(a) The Borrowing of such Loans shall occur on the IDHC Acquisition Date, which shall be on or before the earlier to occur of (i) the termination of the IDHC Acquisition Agreement in writing and (ii) April 26, 2016, or if the “Outside Date” (as defined in the IDHC Acquisition Agreement) shall have been extended to a later date as provided in Section 8.1(a) of the IDHC Acquisition Agreement (as in effect on October 26, 2015), such later date (but in any event not later than July 26, 2016);

(b) The Administrative Agent shall have received a certificate of the chief financial officer of the Parent Borrower as to the solvency of the Parent Borrower and its Subsidiaries, taken as a whole, after giving effect to each element of the IDHC Transactions, in the form of Exhibit F.

(c) All governmental and third party consents and all equityholder and board of directors (or comparable entity management body) authorizations which are required under the IDHC Acquisition Agreement to effectuate the consummation of the IDHC Acquisition shall have been obtained and shall be in full force and effect.

 

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(d) Since June 30, 2015, there shall not have been or occurred any event, condition or circumstance (alone or together with other occurrences or conditions), that, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect. “Company Material Adverse Effect” means (with capitalized terms (other than the terms “IDHC Acquisition Agreement” and “Company Material Adverse Effect”) used in this Section 3.3(d) as defined in the IDHC Acquisition Agreement) an effect, event, change, occurrence or circumstance that (i) has a material adverse effect on the business, results of operations or financial condition of the Company and its Subsidiaries taken as a whole or (ii) prevents or materially delays the ability of the Company to perform its obligations under the IDHC Acquisition Agreement; provided, however, that, in the case of clause (i), no effect, event, change, occurrence or circumstance arising or resulting from any of the following, either alone or in combination, shall constitute or be taken into account in determining whether there has been a Company Material Adverse Effect: (A) general changes in the industries in which the Company or its Subsidiaries operate, (B) general changes in economic conditions, including changes in the credit, debt, financial or capital markets (including changes in interest or exchange rates), in each case, in the United States or anywhere else in the world; (C) earthquakes, floods, hurricanes, tornadoes, volcanic eruption, natural disasters or other acts of nature; (D) changes in global, national or regional political conditions, including hostilities, acts of war, sabotage or terrorism (including cyberterrorism) or military actions or any escalation, worsening of any such hostilities, acts of war, sabotage or terrorism (including cyberterrorism) or military actions existing or underway; (E) the execution, announcement, pendency or performance of the IDHC Acquisition Agreement or the consummation of the transactions contemplated thereby (including compliance with the covenants set forth therein and any action taken or omitted to be taken by the Company or any of its Subsidiaries at the written request or with the prior written consent of Parent or Merger Sub), including the impact thereof on relationships, contractual or otherwise, with, clients, customers, suppliers, distributors, partners, financing sources or employees or independent consultants or on revenue, profitability or cash flows (provided, that no effect shall be given to this clause (E) for purposes of Section 4.3 of the IDHC Acquisition Agreement and the certificate contemplated by Section 7.2(c) of the IDHC Acquisition Agreement solely as it related to such Section); (F) Parent’s or its Representatives or Affiliates announcement or other disclosure of its plans or intentions with respect to the conduct of business (or any portion thereof) of the Company or any of its Subsidiaries after the Closing; (G) any change in the cost or availability or other terms of any financing contemplated by Parent or Merger Sub to consummate the transactions contemplated hereby; (H) any changes in Laws, regulatory policies, GAAP or other applicable accounting rules; (I) the fact that the prospective owner of the Company and any of its Subsidiaries is Parent or any Affiliate of Parent; (J) any failure by the Company or any of its Subsidiaries to meet any projections, forecasts or estimates (provided, however, that any effect, event, change, occurrence or circumstance that caused or contributed to such failure of the Company or any of its Subsidiaries to meet projections, forecasts or estimates shall not be excluded under this clause (J)); (K) any change in the credit rating of the Company or any of its Subsidiaries (provided, however, that any effect, event, change, occurrence or circumstance that caused or contributed to such change in such credit rating shall not be excluded under this clause (K)); and (L) any breach of the IDHC Acquisition Agreement by Parent or Merger Sub, except, in the case of clauses (A), (B), (C), (D) and (H), to the extent that the Company and its Subsidiaries, taken as a whole, is affected in a materially disproportionate manner relative to the participants in the industries in which the Company or its Subsidiaries operate, in which case, solely the incremental disproportionate adverse impact may (subject to the terms and limits herein) shall be taken into account in determining whether there has been a Company Material Adverse Effect.

 

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(e) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the IDHC Bridge Arrangers, (i) copies of documentation for the IDHC Acquisition and other aspects of the IDHC Transactions, including the IDHC Acquisition Agreement and all exhibits and schedules thereto, and (ii) evidence of all consents and approvals required pursuant to the terms of the IDHC Acquisition Agreement, including the consent of the board of directors of IDHC and of the equityholders of IDHC. The IDHC Acquisition shall have been consummated substantially concurrently with the Borrowing of such Loans, utilizing only the sources of consideration as agreed between the Parent Borrower, the IDHC Bridge Arrangers, and in accordance with the terms and conditions of the IDHC Acquisition Agreement without giving effect to any waiver, modification or consent thereunder that is materially adverse to the Lenders or the IDHC Bridge Arrangers (as reasonably determined by the IDHC Bridge Arrangers) unless approved by the IDHC Bridge Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed), it being understood and agreed that, without limiting the generality of the foregoing, (1) any decrease in the IDHC Acquisition consideration shall not be materially adverse to the Lenders and the IDHC Bridge Arrangers so long as such decrease is allocated to reduce the Capital Stock of the Parent Borrower issued to the equityholders of IDHC as consideration for the IDHC Acquisition and the amount of such Loans on a pro rata, dollar-for-dollar basis, (2) any increase in the purchase price shall not be materially adverse to the Lenders and the IDHC Bridge Arrangers so long as such increase is funded solely by an increase in the amount of the Capital Stock of the Parent Borrower issued to the equityholders of IDHC as consideration for the IDHC Acquisition and (3) any change to the definition of “Material Adverse Effect” shall be deemed to be a modification which is materially adverse to the Lenders and the IDHC Bridge Arrangers.

(f) The representations and warranties made by or with respect to IDHC and its Subsidiaries in the IDHC Acquisition Agreement as are material to the interests of the Lenders shall be true and correct such that the conditions to closing set forth in the Acquisition Agreement are satisfied with respect thereto, but only to the extent that the Parent Borrower or any of its Affiliates has the right to terminate its obligations under the IDHC Acquisition Agreement, or to decline to consummate the IDHC Acquisition pursuant to the IDHC Acquisition Agreement, as result of a breach of such representations and warranties in the IDHC Acquisition Agreement. The representations and warranties of the Parent Borrower set forth in Sections 4.1 (but only with respect to clause (i) therein), 4.2, 4.3 (but only with respect to clauses (i), (ii) and (iii) therein), 4.7, 4.11, 4.12 and 4.13 shall be true and correct in all material respects (except that any representation and warranty qualified as to materiality or Material Adverse Effect shall be true and correct in all respects).

(g) No Default or Event of Default under Section 8.1(a), 8.1(e), 8.1(f) or 8.1(g) shall have occurred and be continuing on such date, both immediately before and after giving effect to the Loans to be made on such date.

(h) Substantially simultaneously with the Borrowing of such Loans and the consummation of the IDHC Acquisition, all existing Indebtedness of IDHC and its Subsidiaries shall be paid in full and/or defeased. On such date, after giving effect to the IDHC Transactions, neither IDHC nor any of its Subsidiaries shall have any outstanding Indebtedness (other than Indebtedness that the IDHC Bridge Arrangers and the Borrower agree may remain outstanding).

 

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(i) The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.2(b).

(j) The aggregate principal amount of such Loans shall not exceed the aggregate Unutilized Commitments at such time (determined without giving effect to such Loans).

(k) All fees and expenses due to the IDHC Bridge Arrangers, the Administrative Agent and the Lenders required to be paid on the IDHC Acquisition Date (including the fees and expenses of counsel for the IDHC Bridge Arrangers and the Administrative Agent) will have been paid

Without limiting the generality of the provisions of Section 10.5, solely for purposes of determining compliance with the conditions specified in this Section 3.3, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed IDHC Acquisition Date specifying its objection thereto.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

To induce the Primary Administrative Agent, the Backup Administrative Agent, the Issuing Lender and the Lenders to enter into this Agreement and to induce the Lenders to extend the credit contemplated hereby and the Issuing Lender to issue Letters of Credit, each of the BorrowersBorrower represents and warrants to the Primary Administrative Agent, the Backup Administrative Agent and the Lenders as follows:

4.1 Corporate Organization and Power. Each of the BorrowersBorrower and the Guarantors (i) is a corporation or limited company duly organized or formed, validly existing and (in the case of the Parent Borrower or any Domestic Subsidiary) is in good standing under the laws of the jurisdiction of its incorporation, (ii) has the full corporate power and authority to execute, deliver and perform the Credit Documents to which it is or will be a party, to own and hold its property and to engage in its business as presently conducted and (iii) is duly qualified to do business as a foreign corporation or limited company and (in the case of the Parent Borrower or any Domestic Subsidiary) is in good standing in each jurisdiction where the nature of its business or the ownership of its properties requires it to be so qualified, except where the failure to be so qualified, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

4.2 Authorization; Enforceability. Each of the BorrowersBorrower and the Guarantors has taken all necessary corporate or limited company action to execute, deliver and perform each of the Credit Documents to which it is a party, and has (or on any later date of execution and delivery will have) validly executed and delivered each of the Credit Documents to which it is a

 

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party. This Agreement constitutes, and each of the other Credit Documents upon execution and delivery will constitute, the legal, valid and binding obligation of eachthe Borrower and each Guarantor that is a party hereto or thereto, enforceable against it in accordance with its terms, subject, in the case of the Subsidiary Borrower, to Legal Reservations and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law).

4.3 No Violation. The execution, delivery and performance by each of the BorrowersBorrower and the Guarantors of each of the Credit Documents to which it is a party, and compliance by it with the terms hereof and thereof, do not and will not (i) violate any provision of its articles or certificate of incorporation or formation, its bylaws or operating agreement, or other applicable formation or organizational documents, (ii) contravene any other Requirement of Law applicable to it, (iii) conflict with, result in a breach of or constitute (with notice, lapse of time or both) a default under any indenture, mortgage, lease, agreement, contract or other instrument to which it is a party, by which it or any of its properties is bound or to which it is subject or (iv) result in or require the creation or imposition of any Lien, other than a Permitted Lien, upon any of its properties, revenues or assets; except, in the case of clauses (ii), (iii) and (iv) above, where such violations, conflicts, breaches, defaults or liens, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

4.4 Governmental and Third-Party Authorization; Permits. No consent, approval, authorization or other action by, notice to, or registration or filing with, any Governmental Authority, Self-Regulatory Organization, or other Person is required as a condition to or otherwise in connection with the due execution, delivery and performance by any of the BorrowersBorrower or the Guarantors of this Agreement or any of the other Credit Documents to which it is a party or the legality, validity or enforceability hereof or thereof, other than (i) consents, authorizations and filings that have been made or obtained and that are in full force and effect and (ii) consents and filings the failure to obtain or make which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. The Parent Borrower and each Subsidiary thereof is in good standing with respect to, or has maintained in effect, all governmental approvals, licenses, permits and authorizations necessary to conduct its business as presently conducted and to own or lease and operate its properties, except for those the failure to obtain which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

4.5 Litigation. As of the Closing Date, there are no actions, investigations, suits or proceedings pending or, to the knowledge of anythe Borrower, threatened, at law, in equity or in arbitration, before any court, other Governmental Authority, Self-Regulatory Organization, arbitrator or other Person, (i) against or affecting the Parent Borrower or any Subsidiary thereof or any of their respective properties that would reasonably be expected to have a Material Adverse Effect, except as set forth in the Form 10-K filed by the Parent Borrower with the SEC on February 14, 2014 (and there have been no material adverse developments since such date in any such actions, investigations, suits or proceedings disclosed in such Form 10-K), or (ii) with respect to this Agreement, any of the other Credit Documents or any of the other transactions contemplated hereby or thereby.

 

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4.6 Full Disclosure. All factual information (other than information of a general economic or industry specific nature) heretofore, contemporaneously or hereafter furnished in writing to the Administrative Agent, any Arranger or any Lender by or on behalf of the Parent Borrower or any Subsidiary thereof pursuant to this Agreement or the other Credit Documents, when taken as a whole, is or will be true and accurate in all material respects on the date as of which such information is dated or certified (or, if such information has been updated, amended or supplemented, on the date as of which any such update, amendment or supplement is dated or certified) and does not or will not omit any material fact necessary to make the statements contained herein and therein, in light of the circumstances under which such information was provided, taken as a whole, not misleading; provided that, with respect to projections, budgets and other estimates, each of the BorrowersBorrower represents only that such information was prepared in good faith based upon assumptions believed by it to be reasonable at the time.

4.7 Margin Regulations. Neither Borrower is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No proceeds of the Loans will be used, directly or indirectly, to purchase or carry any Margin Stock, to extend credit for such purpose or for any other purpose, in each case that would violate or be inconsistent with Regulations T, U or X or any provision of the Exchange Act.

4.8 No Material Adverse Effect. As of the Closing Date, there has been no Material Adverse Effect since December 31, 2013, and there exists no event, condition or state of facts that would reasonably be expected to result in a Material Adverse Effect.

4.9 Financial Matters. The Parent Borrower has heretofore furnished to the Administrative Agent copies of (i) the audited consolidated balance sheets of the Parent Borrower and its Subsidiaries for the 2014 fiscal year with the related statements of income, stockholders’ equity, comprehensive income and cash flows for the 2014 fiscal year, together with the opinions of Ernst & Young LLP thereon and (ii) the unaudited consolidated balance sheets of the Parent Borrower and its Subsidiaries as of September 30, 2015 with the related statements of income, stockholders’ equity, comprehensive income and cash flows for the fiscal quarter ended on that date. Such financial statements have been prepared in accordance with GAAP and present fairly in all material respects the financial condition of the Parent Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the results of operations of the Parent Borrower and its Subsidiaries on a consolidated basis for the period then ended subject, in the case of clause (ii), to the absence of footnotes and to normal year-end audit adjustments.

4.10 Compliance with Laws. Each of the Parent Borrower and its Subsidiaries has timely filed all material reports, documents and other materials required to be filed by it under all applicable Requirements of Law with any Governmental Authority, has retained all material records and documents required to be retained by it under all applicable Requirements of Law, and is otherwise in compliance with all applicable Requirements of Law in respect of the conduct of its business and the ownership and operation of its properties, including the applicable rules of any Self-Regulatory Organization, except in each case to the extent that the failure to comply therewith, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

 

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4.11 Investment Company Act. NoThe Borrower is not, nor is anythe Borrower required to be, registered as an “investment company” under the Investment Company Act of 1940.

4.12 OFAC; Anti-Terrorism Laws.

(a) The Parent Borrower and its Subsidiaries, and, to the best knowledge of the Parent Borrower, its Affiliates and their respective directors, officers and employees have conducted their business in compliance with the Anti-Corruption Laws and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws in all material respects.

(b) Neither the Parent Borrower nor any Subsidiary, nor, to the best knowledge of the Parent Borrower, its Affiliates and their respective directors, officers and employees, acting or benefiting in any capacity in connection with the extensions of credit made available under this Agreement:

(i) is a Designated Person;

(ii) is a Person that is owned or controlled by a Designated Person;

(iii) is located, organized or resident in a Sanctioned Country; or

(iv) is now engaged in, any material dealings or transactions (1) with any Designated Person or (2) in any Sanctioned Country.

(c) Neither the making of the Loans hereunder nor the use of the proceeds thereof will violate the PATRIOT Act, any Anti-Corruption Laws, the Trading with the Enemy Act, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V) or any enabling legislation or executive order relating thereto. The Parent Borrower and each Subsidiary thereof is in compliance in all material respects with the PATRIOT Act and all Anti-Corruption Laws.

 

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4.13 Solvency. In the event (and only in the event) that any Borrowing is requested to be made on the IDHC Acquisition Date in accordance with Section 3.3, immediately after giving effect to the consummation of the IDHC Transactions on the applicable Borrowing Date, the Parent Borrower and its Subsidiaries on a consolidated basis will be solvent. For purposes of the preceding sentence, “solvent” means that (i) the fair saleable value (on a going concern basis) of the Parent Borrower’s assets exceeds its liabilities, contingent or otherwise, fairly valued, (ii) the Parent Borrower will be able to pay its debts as they become due and (iii) upon paying its debts as they become due, the Parent Borrower will not be left with unreasonably small capital as is necessary to satisfy all of its current and reasonably anticipated obligations.

ARTICLE V

AFFIRMATIVE COVENANTS

Each of the BorrowersThe Borrower covenants and agrees that, until the termination of the Commitments, the termination or expiration of all Letters of Credit and the payment in full in cash of all principal and interest with respect to the Loans and all Reimbursement Obligations together with all fees, expenses and other amounts then due and owing hereunder:

5.1 Financial Statements. The Parent Borrower will deliver to the Administrative Agent on behalf of the Lenders:

(a) As soon as available and in any event within 45 days (or, if earlier and if applicable to the Parent Borrower, the quarterly report deadline under the Exchange Act rules and regulations) after the end of each of the first three fiscal quarters of each fiscal year, beginning with the first fiscal quarter of fiscal year 2014, unaudited consolidated balance sheets of the Parent Borrower and its Subsidiaries as of the end of such fiscal quarter and unaudited consolidated statements of income, cash flows and stockholders’ equity for the Parent Borrower and its Subsidiaries for the fiscal quarter then ended and for that portion of the fiscal year then ended, in each case setting forth comparative consolidated figures as of the end of and for the corresponding period in the preceding fiscal year, all in reasonable detail and prepared in accordance with GAAP (subject to the absence of notes required by GAAP and subject to normal year-end adjustments) applied on a basis consistent with that of the preceding quarter or containing disclosure of the effect on the financial condition or results of operations of any change in the application of accounting principles and practices during such quarter; provided that any financial statements required to be delivered as set forth above prior to December 31, 2014, shall not be required to contain any comparative consolidated figures; and

(b) As soon as available and in any event within 90 days (or, if earlier and if applicable to the Parent Borrower, the annual report deadline under the Exchange Act rules and regulations) after the end of each fiscal year, beginning with fiscal year 2014, an audited consolidated balance sheet of the Parent Borrower and its Subsidiaries as of the end of such fiscal year and the related audited consolidated statements of income, cash flows and stockholders’ equity for the Parent Borrower and its Subsidiaries for the fiscal year then ended, including the notes thereto, in each case setting forth comparative consolidated figures as of the end of and for the preceding fiscal year, all in reasonable detail and (with respect to the audited statements) certified by the independent certified public accounting firm regularly retained by the Parent Borrower or another

 

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independent certified public accounting firm of recognized national standing reasonably acceptable to the Administrative Agent, together with a report thereon by such accountants that is not qualified as to going concern or scope of audit and to the effect that such financial statements present fairly in all material respects the consolidated financial condition and results of operations of the Parent Borrower and its Subsidiaries as of the dates and for the periods indicated in accordance with GAAP applied on a basis consistent with that of the preceding year or containing disclosure of the effect on the financial condition or results of operations of any change in the application of accounting principles and practices during such year; provided that any financial statements required to be delivered as set forth above prior to December 31, 2014, shall not be required to contain any comparative consolidated figures.

Documents required to be delivered pursuant to Sections 5.1, 5.2(a) or 5.2(b) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent Borrower provides notice to the Lenders that such information has been posted on the Parent Borrower’s website on the Internet at http://ir.theice.com/sec.cfm, at www.sec.gov/edgar/searchedgar/webusers.htm or at another website identified in such notice and accessible by the Lenders without charge; or (ii) on which such documents are posted on the Parent Borrower’s behalf on SyndTrak or another relevant website, if any, to which each of the Administrative Agent and each Lender has access; provided that (x) upon the request of the Administrative Agent or any Lender lacking access to the internet or SyndTrak, the Parent Borrower shall deliver paper copies of such documents to the Administrative Agent or such Lender (until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender) and (y) the Parent Borrower shall notify (which may be by a facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any documents. The Administrative Agent shall have no obligation to request the delivery of, or to maintain copies of, the documents referred to in the proviso to the immediately preceding sentence or to monitor compliance by the Parent Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

5.2 Other Business and Financial Information. The Parent Borrower will deliver to the Administrative Agent and each Lender:

(a) Concurrently with each delivery of the financial statements described in Sections 5.1(a) and 5.1(b), a Compliance Certificate with respect to the period covered by the financial statements being delivered thereunder, executed by a Financial Officer of the Parent Borrower, together with a Covenant Compliance Worksheet reflecting the computation of the financial covenants set forth in Article VI as of the last day of the period covered by such financial statements and containing explanatory footnotes of all pro forma adjustments and all adjustments to Consolidated EBITDA;

(b) Promptly upon the sending, filing or receipt thereof, copies of (i) all financial statements, reports, notices and proxy statements that the Parent Borrower shall send or make available generally to its stockholders, (ii) all material regular, periodic and special reports, registration statements and prospectuses (other than on Form S-8) that the Parent Borrower shall render to or file with the SEC and (iii) all press releases (excluding member notes and circulars) made available generally by the Parent Borrower or any Subsidiary thereof to the public concerning material developments in the business of the Parent Borrower and its

 

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Subsidiaries; provided that notwithstanding anything to the contrary included in Section 5.1, the Parent Borrower shall be deemed to have given notice to the Administrative Agent and each Lender of the posting on the Parent Borrower’s Internet website of the business and financial information set forth in clauses (i), (ii) or (iii) of this Section 5.2(b) at the time such information is posted thereon and no further notice shall be required to be provided by the Parent Borrower to the Administrative Agent and the Lenders with respect thereto;

(c) Promptly upon (and in any event within five Business Days after) any Responsible Officer of anythe Borrower obtaining knowledge thereof, written notice of any of the following:

(i) the occurrence of any Default or Event of Default, together with a written statement of a Responsible Officer of the Parent Borrower specifying the nature of such Default or Event of Default;

(ii) the institution or threatened institution of any action, suit, investigation or proceeding against or affecting the Parent Borrower or any of its Subsidiaries, including any such investigation or proceeding by any Governmental Authority or Self-Regulatory Organization (other than routine periodic regular or day-to-day inquiries, communications, investigations or reviews), that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and any material adverse development in any litigation or other proceeding previously reported pursuant to Section 4.5 or this Section 5.2(c)(ii);

(iii) any change in the Debt Ratings; and

(iv) any other matter or event that has, or would reasonably be expected to have, a Material Adverse Effect.

(d) As promptly as reasonably possible, such other information about the business, financial condition, operations or properties of the Parent Borrower or any of its Subsidiaries as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request (except with respect to information relating to communications with any Governmental Authority or Self-Regulatory Organization with jurisdiction over any Regulated Subsidiary).

5.3 Existence; Franchises; Maintenance of Properties. EachThe Borrower will, and will cause each of its Subsidiaries to, (i) maintain and preserve in full force and effect its legal existence, except as expressly permitted otherwise by Section 7.1 or 7.4, (ii) obtain, maintain and preserve in full force and effect all other rights, franchises, licenses, permits, certifications, approvals and authorizations required by Governmental Authorities and Self-Regulatory Organizations necessary to the ownership, occupation or use of its properties or the conduct of its business, except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect, and (iii) keep all material properties in good working order and condition (normal wear and tear and damage by casualty excepted); provided that this Section 5.3 shall not prevent anythe Borrower or any Subsidiary thereof from discontinuing the operation and the maintenance of any of its properties if such discontinuance, in the judgment of the Parent Borrower, is desirable in or not disadvantageous to the conduct of the business of it and its Subsidiaries.

 

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5.4 Use of Proceeds. The proceeds of the Loans shall be used to provide for working capital and general corporate purposes of the BorrowersBorrower.

5.5 Compliance with Laws. EachThe Borrower will, and will cause each of its Subsidiaries to, comply in all respects with all Requirements of Law applicable in respect of the conduct of its business and the ownership and operation of its properties, except to the extent the failure so to comply would not reasonably be expected to have a Material Adverse Effect.

5.6 Payment of Taxes. EachThe Borrower will, and will cause each of its Subsidiaries to, pay and discharge all taxes, assessments and governmental charges or levies imposed upon it, upon its income or profits or upon any of its properties, prior to the date on which penalties would attach thereto, and all lawful claims that, if unpaid, would become a Lien (other than a Permitted Lien) upon any of the properties of any such Person except to the extent failure to do so would not reasonably be expected to have a Material Adverse Effect; provided, however, that no such Person shall be required to pay any such tax, assessment, charge, levy or claim that is being contested in good faith and by proper proceedings and as to which such Person is maintaining adequate reserves with respect thereto in accordance with GAAP (or, in the case of the Subsidiary Borrower or the other Foreign Subsidiaries, generally accepted accounting principles in the jurisdiction of its organization).

5.7 Insurance. EachThe Borrower will, and will cause each of its Subsidiaries to, maintain with financially sound and reputable insurance companies insurance with respect to its assets, properties and business, against such hazards and liabilities, of such types and in such amounts, as is customarily maintained by companies in the same or similar businesses similarly situated.

5.8 Maintenance of Books and Records; Inspection. EachThe Borrower will, and will cause each of its Subsidiaries to, (i) maintain adequate books, accounts and records, in which full, true and correct entries shall be made of all financial transactions in relation to its business and properties, and prepare all financial statements required under this Agreement, in each case in accordance with GAAP (or, in the case of the Subsidiary Borrower or the other Foreign Subsidiaries, generally accepted accounting principles in the jurisdiction of its organization) and in compliance with the requirements of any Governmental Authority or Self-Regulatory Organization having jurisdiction over it, and (ii) permit employees or agents of the Administrative Agent or any Lender to visit and inspect its properties and examine or audit its books, records, working papers and accounts (except with respect to information relating to communications with any Governmental Authority or Self-Regulatory Organization with jurisdiction over any Regulated Subsidiary or which are confidential with respect to members or users of such Regulated Subsidiaries), and make copies and memoranda of them, and to discuss its affairs, finances and accounts with its officers and employees and, upon reasonable notice to suchthe Borrower, the independent public accountants of suchthe Borrower and its Subsidiaries (and by this provision suchthe Borrower authorizes such accountants to discuss the finances and affairs of suchthe Borrower and its Subsidiaries), all at such times and from time to time, upon reasonable notice and during business hours, as may be reasonably requested; provided that (i) all such visits

 

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shall be coordinated through the Administrative Agent, (ii) unless a Default or Event of Default exists, no more than one such visit during any fiscal year shall be at the expense of the BorrowersBorrower, and (iii) when a Default or Event of Default exists, the Administrative Agent may do any of the foregoing at the expense of suchthe Borrower at any time during normal business hours and without advance notice.

5.9 Subsidiary Guarantors.

(a) The Parent Borrower may from time to time, with respect to any Subsidiary of the Parent Borrower, deliver to the Administrative Agent a Subsidiary Guaranty to provide a guaranty of the Obligations, which shall be in a form reasonably acceptable to the Administrative Agent, executed by such Subsidiary of the Parent Borrower. In connection with any such Subsidiary Guaranty, the Parent Borrower will deliver to the Lenders the following items:

(i) an opinion of counsel (who may be in-house counsel for the Parent Borrower) addressed to the Administrative Agent and the Lenders, substantially to the effect that such Subsidiary Guaranty by such Person has been duly authorized, executed and delivered and that such Subsidiary Guaranty constitutes the legal, valid and binding obligation of such Person enforceable in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and addressing such other matters as the Administrative Agent shall reasonably request to the extent permitted by Requirements of Law; and

(ii) (A) a copy of the certificate of incorporation (or other charter documents) of such Subsidiary, certified as of a date that is reasonably acceptable to the Administrative Agent by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary, (B) a copy of the bylaws, articles of association or similar organizational document of such Subsidiary, certified on behalf of such Subsidiary as of a date that is reasonably acceptable to the Administrative Agent by the corporate secretary or assistant secretary of such Subsidiary, (C) an original certificate of good standing, if applicable, for such Subsidiary, issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary and (D) copies of the resolutions of the board of directors and, if required, stockholders or other equity owners of such Subsidiary authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to this Section 5.9, certified on behalf of such Subsidiary by an Authorized Officer of such Subsidiary, all in form and substance reasonably satisfactory to the Administrative Agent.

(b) Except while any commitments in respect of, or loans made under, the IDHC Bridge Facility remain outstanding, theThe Lenders agree that any Subsidiary Guarantor shall be automatically released from any Subsidiary Guaranty upon (x) the sale, disposition or transfer of such Subsidiary or its assets in a transaction not prohibited by this Agreement or (y) the written request of the Parent Borrower (including a certification that the following conditions to release have been or will be concurrently satisfied): (i) at the time of such release and discharge and

 

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immediately after giving effect thereto, no Default or Event of Default shall exist and (ii) if such Subsidiary Guarantor is NYSE, at the time of such release and discharge, the lowest rating of any issuance by the Parent Borrower of senior, unsecured, long-term indebtedness for borrowed money that, immediately after giving effect to such release and discharge, is not guaranteed by any Person that is not also a Guarantor of the Obligations or subject to any other credit enhancement by Standard & Poor’s Financial Services LLC and Moody’s Investors Service, Inc. is not less than BBB- and Baa3 respectively.

5.10 Anti-Corruption Laws, OFAC, PATRIOT Act Compliance.

(a) The Parent Borrower shall not, and shall ensure that none of its Subsidiaries will, knowingly use the proceeds of any Loan or Letter of Credit:

(i) for any purpose which would violate the Anti-Corruption Laws;

(ii) to fund, finance or facilitate any activity, business or transaction of or with any Designated Person or in any Sanctioned Country, or otherwise in violation of Sanctions; or

(iii) in any other manner that would result in a material violation of any applicable Sanctions by any Agent, Issuing Lender or Lender.

(b) The Parent Borrower shall not, and shall ensure that none of its Subsidiaries will, use funds or assets obtained from transactions with or otherwise relating to (i) Designated Persons or (ii) any Sanctioned Country, to pay or repay any Obligation.

(c) The Parent Borrower shall, and shall ensure that each of its Subsidiaries will:

(i) conduct its business in compliance with the Anti-Corruption Laws;

(ii) maintain policies and procedures designed to promote and achieve compliance with the Anti-Corruption Laws; and

(iii) have appropriate controls and safeguards in place designed to prevent any proceeds of any extension of credit made hereunder from being used contrary to the representations and undertakings set forth herein.

(d) The Parent Borrower shall, and shall ensure that each of its Subsidiaries will, comply in all material respects with all foreign and domestic laws, rules and regulations (including the Patriot Act, foreign exchange control regulations, foreign asset control regulations and other trade-related regulations).

 

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ARTICLE VI

FINANCIAL COVENANT

Each of the BorrowersThe Borrower covenants and agrees that, until the termination of the Commitments, the termination or expiration of all Letters of Credit and the payment in full in cash of all principal and interest with respect to the Loans and all Reimbursement Obligations together with all fees, expenses and other amounts then due and owing hereunder:

6.1 Maximum Total Leverage Ratio. The Total Leverage Ratio as of the last day of any fiscal quarter, beginning with the first fiscal quarter of 2014, shall not be greater than the ratio of (i) at any time prior to the IDHC Acquisition Date (or the termination of the IDHC Acquisition Agreement) or after the first anniversary of the IDHC Acquisition Date, 3.25 to 1.00 and (ii) at any time on or after the IDHC Acquisition Date but on or prior to the first anniversary of the IDHC Acquisition Date, 3.75 to 1.00. 3.50 to 1.00; provided that (i) upon the consummation of a Qualified Acquisition, the maximum Total Leverage Ratio shall increase to 4.00 to 1.00 as of the end of the fiscal quarter in which such Qualified Acquisition is consummated and the three full fiscal quarters immediately following the consummation of such Qualified Acquisition (such four fiscal quarter period, the “Leverage Increase Period”), (ii) except with respect to the first designation of a Qualified Acquisition, the Borrower may not designate an Acquisition as a “Qualified Acquisition” unless the Total Leverage Ratio as of the end of at least two consecutive full fiscal quarters of the Borrower since the commencement of the first Leverage Increase Period has been equal to or less than 3.00:1.00; (iii) no more than two Leverage Increase Periods may be elected by the Borrower during the term of this Agreement; and (iv) immediately after the end of a Leverage Increase Period, the maximum Total Leverage Ratio as of the last day of the then applicable fiscal quarter shall automatically revert to 3.50 to 1.00.

ARTICLE VII

NEGATIVE COVENANTS

EachThe Borrower covenants and agrees that, until the termination of the Commitments, the termination or expiration of all Letters of Credit and the payment in full in cash of all principal and interest with respect to the Loans and all Reimbursement Obligations together with all fees, expenses and other amounts then due and owing hereunder:

7.1 Merger; Consolidation. EachThe Borrower will not, and will not permit or cause any of its Subsidiaries to, liquidate, wind up or dissolve, or enter into any consolidation, amalgamation, merger or other combination, except:

(i) any Subsidiary of the Parent Borrower (other than the Subsidiary Borrower or any Guarantor) may merge, consolidate or amalgamate with, or be liquidated into, (x) athe Borrower (so long as suchthe Borrower is the surviving or continuing entity), (y) any other Subsidiary of the Parent Borrower (other than (A) the Subsidiary Borrower or (B) any Guarantor unless (in the case of this clause (B) only) the surviving or continuing entity is a Guarantor) or (z) so long as no Event of Default has occurred and is continuing or would result therefrom, any other Person, to the extent such merger, consolidation or amalgamation is not prohibited by Section 7.4 and, if either Person is a Wholly Owned Subsidiary, then the surviving Person is a Wholly Owned Subsidiary;

(ii) so long as no Event of Default has occurred and is continuing or would result therefrom, anythe Borrower may merge, consolidate or amalgamate with another Person (other than the Parent Borrower or any Subsidiary thereof), so long as suchthe Borrower is the surviving entity; and

 

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(iii) to the extent not otherwise permitted under the foregoing clauses, any Subsidiary that has sold, transferred or otherwise disposed of all or substantially all of its assets in connection with a transaction permitted under this Agreement and/or no longer conducts any active trade or business may be liquidated, wound up or dissolved or may otherwise cease to exist pursuant to a transaction not prohibited by this Agreement.

7.2 Subsidiary Indebtedness. The Parent Borrower will not permit or cause any of its Subsidiaries to create, incur, assume or suffer to exist any Indebtedness other than (without duplication):

(i) Indebtedness of the Subsidiary Borrower or any Guarantor in favor of the Administrative Agent and the Lenders incurred under this Agreement and the other Credit Documents;

(ii) accrued expenses (including salaries, accrued vacation and other compensation), current trade or other accounts payable and other current liabilities arising in the ordinary course of business and not incurred through the borrowing of money, in each case to the extent constituting Indebtedness;

(iii) Indebtedness of any Subsidiary of the Parent Borrower owed to the Parent Borrower or any Subsidiary thereof; provided that all secured Indebtedness permitted pursuant to this Section 7.2(iii) that is owed to any Person other than athe Borrower or a Guarantor shall be secured by Liens permitted under Section 7.3(xiii);

(iv) Indebtedness of, and secured by a Lien on cash, Cash Equivalents, marketable securities, gold bullion or other precious metals (including silver and, in relation to those other precious metals, as are reasonably satisfactory to the Administrative Agent and capable of being marked to market on a daily basis) granted by, any Clearing House Subsidiary from the Federal Reserve Discount Window or other central bank money market operations or other central securities depositories or external custodians or other credit providers in support of, or related to, such Subsidiary’s clearing, depository and settlement business, or matters reasonably related or incidental thereto, to the extent not prohibited by applicable Governmental Authorities; provided that any such Indebtedness is not outstanding for longer than 30 days;

(v) Indebtedness of, and secured by a Lien on cash, Cash Equivalents, marketable securities, gold bullion or other precious metals (including silver and, in relation to those other precious metals, as are reasonably satisfactory to the Administrative Agent and capable of being marked to market on a daily basis) granted by, any Clearing House Subsidiary in respect of repurchase agreements, reverse repurchase agreements, sell buy back and buy sell back agreements, securities lending and borrowing agreements and any other similar agreement or transaction (including Hedge Agreements) entered into by such Clearing House Subsidiary in the ordinary course of its clearing, depository and settlement operations, or matters reasonably related or incidental thereto, or in the

 

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management of its liabilities; provided that the amount of such Indebtedness outstanding at any time does not exceed the market value of the securities or other assets sold, loaned or borrowed or otherwise subject to such applicable agreement or transaction at such time, as the case may be;

(vi) short-term Indebtedness of, and secured by a Lien on cash, Cash Equivalents, marketable securities, gold bullion or other precious metals (including silver and, in relation to those other precious metals, as are reasonably satisfactory to the Administrative Agent and capable of being marked to market on a daily basis) granted by, any Clearing House Subsidiary in respect of any credit facility relating to the clearing, depository and settlement business of such Clearing House Subsidiary, and the purpose of which is to provide funding (A) to satisfy any outstanding obligations of any suspended or defaulted clearing member or participant (or any clearing member or participant that could be declared suspended or defaulted) to any Clearing House Subsidiary as provided in the applicable rules or standardized terms and conditions of the business operated by such Clearing House Subsidiary, (B) with respect to the transfer of positions and related margin from a suspended or defaulted clearing member or participant to another clearing member or participant, (C) to make a transfer in cash in respect of margin related to such suspended or defaulted clearing member’s or participant’s positions, (D) in the event of a liquidity constraint or default by a depositary of such Clearing House Subsidiary, (E) to facilitate the settlement of margin transactions associated with such Clearing House Subsidiary’s business activities or (F) for other matters reasonably related or incidental thereto;

(vii) (A) Indebtedness that may be deemed to exist pursuant to any performance bond, surety, statutory appeal or similar obligation entered into or incurred by any Subsidiary (x) that is a clearing house operator acting in its capacity as a central counterparty or (y) in the ordinary course of business, (B) contingent liabilities in respect of any indemnification, adjustment of purchase price, noncompete, consulting, deferred compensation and similar obligations to the extent any such obligations constitute Indebtedness, (C) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument of a Subsidiary drawn against insufficient funds in the ordinary course of business and (D) Indebtedness which finances workers’ compensation, health, disability or life insurance or which finances other employee benefits or property, casualty or liability insurance, or self-insurance, in each case in the ordinary course of business;

(viii) Indebtedness secured by Liens permitted pursuant to Sections 7.3(i) through 7.3(vii), 7.3(ix) or 7.3(xii);

(ix) Indebtedness of any Guarantor; provided that all secured Indebtedness permitted pursuant to this Section 7.2(ix) shall be secured by Liens permitted under Section 7.3(xiii); and

(x) other Indebtedness (secured or unsecured) of any Subsidiary of the Parent Borrower (other than any Guarantor); provided that (x) at the time any such Indebtedness is incurred, the sum of (1) the aggregate amount of all Indebtedness permitted pursuant to this Section 7.2(x) and (2) all Indebtedness incurred by anythe Borrower or

 

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Guarantor secured by Liens permitted pursuant to Section 7.3(xiii) shall not exceed 15% of the Consolidated Net Worth of the Parent Borrower and its Subsidiaries (to be determined on a Pro Forma Basis as of the end of the most recently ended fiscal quarter of the Parent Borrower for which financial statements have been delivered prior to the Closing Date or pursuant to Section 5.1(a) or 5.1(b)) and (y) all secured Indebtedness permitted pursuant to this Section 7.2(x) shall be secured by Liens permitted under Section 7.3(xiii).

7.3 Liens. EachThe Borrower will not, and will not permit or cause any of its Subsidiaries to, directly or indirectly, grant, create, incur, assume or suffer to exist, any Lien upon or with respect to any part of its property or assets, whether now owned or hereafter acquired or agree to do any of the foregoing, other than the following (collectively, “Permitted Liens”):

(i) Liens in existence on the Closing Date and set forth on Schedule 7.3 and any extensions, renewals or replacements thereof; provided that any such extension, renewal or replacement Lien shall be limited to all or a part of the property that secured the Lien so extended, renewed or replaced (plus any improvements on such property) and shall secure only those obligations that it secures on the date hereof (and any renewals, replacements, refinancings or extensions of such obligations that do not increase the outstanding principal amount thereof plus any accrued interest, premium, fee and reasonable out-of-pocket expenses payable in connection with any such extension, renewal or replacement);

(ii) Liens imposed by law, such as Liens of carriers, warehousemen, mechanics, materialmen and landlords, incurred in the ordinary course of business securing sums (A) not constituting borrowed money that are not overdue by more than 90 days or (B) the validity or amount of which is being contested in good faith by appropriate proceedings;

(iii) Liens (other than any Lien imposed by ERISA, the creation or incurrence of which would result in an Event of Default under Section 8.1(k)) incurred in the ordinary course of business in connection with worker’s compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure the performance of letters of credit, bids, tenders, statutory obligations, surety and appeal bonds, leases, public or statutory obligations, government contracts and other similar obligations (other than obligations for borrowed money) entered into in the ordinary course of business;

(iv) Liens for taxes, assessments or other governmental charges or statutory obligations that are not delinquent for a period of more than 30 days or remain payable without any penalty or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP (or, in the case of the Subsidiary Borrower or the other Foreign Subsidiaries, generally accepted accounting principles in the jurisdiction of its organization), if so required;

(v) any attachment or judgment Lien not constituting an Event of Default under Section 8.1(i);

 

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(vi) any leases, subleases, licenses or sublicenses granted by the Parent Borrower or any of its Subsidiaries to third parties in the ordinary course of business and not interfering in any material respect with the business of the Parent Borrower and its Subsidiaries, and any interest or title of a lessor, sublessor, licensor or sublicensor under any lease or license permitted under this Agreement;

(vii) Liens created or existing over all or any part of any Guaranty Fund or any Regulatory Capital Assets;

(viii) Liens securing Indebtedness permitted pursuant to Section 7.2(iv), 7.2(v) or 7.2(vi);

(ix) Liens securing purchase money Indebtedness of the Parent Borrower and its Subsidiaries incurred solely to finance the acquisition, construction or improvement of any equipment, real property or other fixed assets in the ordinary course of business (or assumed or acquired by the Parent Borrower and its Subsidiaries in connection with a transaction permitted under this Agreement), including Capital Lease Obligations, and any renewals, replacements, refinancings or extensions thereof; provided that (x) any such Lien shall attach to the property being acquired, constructed or improved with such Indebtedness concurrently with or within 180 days after the acquisition (or completion of construction or improvement) or the refinancing thereof by the Parent Borrower or such Subsidiary, (y) the amount of the Indebtedness secured by such Lien shall not exceed 100% of the cost to the Parent Borrower or such Subsidiary of acquiring, constructing or improving the property and any other assets then being financed solely by the same financing source and (z) any such Lien shall not encumber any other property of the Parent Borrower or any of its Subsidiaries except assets then being financed solely by the same financing source;

(x) statutory and common law rights of set-off and other similar rights and remedies as to deposits of cash, securities, commodities and other funds in favor of banks, other depositary institutions, securities or commodities intermediaries or brokerage incurred in the ordinary course of business;

(xi) Liens (A) consisting of minor defects in title that do not interfere with the Parent Borrower’s or any applicable Subsidiary’s ability to conduct its business as currently conducted and (B) arising in the ordinary course of its business which (1) do not secure Indebtedness and (2) do not in the aggregate materially impair the operation of the business of the Parent Borrower and its Subsidiaries, taken as a whole;

(xii) Liens (A) existing on any asset prior to the acquisition thereof by the Parent Borrower or any Subsidiary and not created in contemplation of such acquisition and (B) existing on any asset of any Person at the time such Person is merged into or consolidated with the Parent Borrower or any Subsidiary or otherwise becomes a Subsidiary and not created in contemplation of such event;

 

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(xiii) Liens on assets of the Parent Borrower and its Subsidiaries not otherwise permitted by this Section 7.3; provided that, at the time any such Lien is incurred, the total amount of the Indebtedness and other obligations secured by Liens permitted under this Section 7.3(xiii) does not exceed 7.5% of the Consolidated Net Worth of the Parent Borrower and its Subsidiaries (to be determined on a Pro Forma Basis as of the end of the most recently ended fiscal quarter of the Parent Borrower for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b));

(xiv) Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction and covering only the items being collected upon;

(xv) Liens of sellers of goods to the Parent Borrower or its Subsidiaries arising under Article 2 of the Uniform Commercial Code in effect in the relevant jurisdiction or similar provisions of applicable law in the ordinary course of business;

(xvi) Liens consisting of an agreement to sell, transfer or dispose of any asset (to the extent such sale, transfer or disposition is not prohibited by this Agreement); and

(xvii) Liens with respect to Capital Stock which constitute minority investments held by the Parent Borrower or any of its Subsidiaries other than Liens with respect to any such Capital Stock incurred in connection with (A) any Indebtedness specified in clauses (i), (ii) or (v) of the definition thereof or (B) any Guaranty Obligation of any of such Indebtedness; and

(xviii) Liens securing any Hedge Agreement entered into by any Clearing House Subsidiary in the ordinary course of its clearing, deposit and settlement operations, or matters reasonably related or incidental thereto, or in the management of its assets and liabilities.

7.4 Asset Dispositions. The Parent Borrower will not convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the assets of the Parent Borrower and its Subsidiaries, taken as a whole, whether now owned or hereafter acquired.

7.5 Dividend Payments. At any time that any loans made under the IDHC Bridge Facility remain outstanding, the Parent Borrower will not, directly or indirectly, declare or make any dividend payment, or make any other distribution of cash, property or assets, in respect of any of its Capital Stock or any warrants, rights or options to acquire its Capital Stock, or purchase, redeem, retire or otherwise acquire for value any shares of its Capital Stock or any warrants, rights or options to acquire its Capital Stock, or set aside funds for any of the foregoing, except that the Parent Borrower may:[Reserved].

(i) declare and make dividend payments or other distributions payable solely in its Capital Stock;

(ii) declare and make dividend payments in the ordinary course of business consistent with past practices;

 

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(iii) make usual and customary purchases, redemptions or other acquisitions of its Capital Stock from present or former officers, directors or employees; and

7.6(iv) make purchases, redemptions or other acquisitions of its Capital Stock in an aggregate cash amount not exceeding $50,000,000 for all such purchases, redemptions and acquisitions from and after the IDHC Acquisition Date.[Reserved].

7.6 Acquisitions. At any time that any loans made under the IDHC Bridge Facility remain outstanding, the Parent Borrower will not, and will not permit or cause any of its Subsidiaries to, consummate or agree to consummate any Acquisition to extent that the aggregate amount paid for all such Acquisitions (other than in the form of equity and similar non-cash consideration) exceeds $100,000,000.

ARTICLE VIII

EVENTS OF DEFAULT

8.1 Events of Default. The occurrence of any one or more of the following events shall constitute an “Event of Default”:

(a) anythe Borrower shall fail to pay when due (i) any principal of any Loan or any Reimbursement Obligation, or (ii) any interest on any Loan or other Obligation, any fee payable under this Agreement or any other Credit Document, or (except as provided in clause (i) above) any other Obligation (other than any Obligation under a Hedge Agreement), and (in the case of this clause (ii) only) such failure shall continue for a period of three Business Days;

(b) anythe Borrower shall (i) fail to observe, perform or comply with any condition, covenant or agreement contained in any of Section 5.2(c)(i) or 5.4, clause (i) of Section 5.3 (with respect to athe Borrower) or Article VI or VII;

(c) athe Borrower or the Guarantor shall fail to observe, perform or comply with any condition, covenant or agreement contained in this Agreement or any of the other Credit Documents other than those enumerated in Sections 8.1(a) and 8.1(b), and such failure (i) by the express terms of such Credit Document, constitutes an Event of Default, or (ii) shall continue unremedied for any grace period specifically applicable thereto or, if no grace period is specifically applicable, for a period of 30 days after the earlier of (y) the date on which a Responsible Officer of athe Borrower or the Guarantor acquires knowledge thereof and (z) the date on which written notice thereof is delivered by the Administrative Agent or any Lender to athe Borrower;

(d) any representation or warranty made or deemed made by or on behalf of anythe Borrower or the Guarantor in this Agreement, in any Compliance Certificate or in any of the other Credit Documents or any other writing furnished pursuant to any of the foregoing shall prove to have been incorrect, false or misleading in any material respect as of the time made, deemed made or furnished;

 

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(e) the Parent Borrower or any Subsidiary thereof shall (A) fail to pay when due (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise and after giving effect to any applicable notice provisions) any principal of or interest due under any Indebtedness (other than the Indebtedness incurred pursuant to this Agreement) having an aggregate principal amount of at least the Threshold Amount and such amount due under such Indebtedness shall remain outstanding beyond any applicable grace periods provided therefor in the applicable documentation; or (B) fail to observe, perform or comply with any condition, covenant or agreement contained in any agreement or instrument evidencing or relating to any such Indebtedness, or any other event shall occur or condition exist in respect thereof, and (in the case of this clause (B) only) the effect of such failure, event or condition is to cause (or the holder or holders of such Indebtedness (or a trustee or agent on its or their behalf) shall have exercised a right arising as a result thereof to cause), without regard to any subordination terms with respect thereto, such Indebtedness to become due prior to its stated maturity or any regularly scheduled date of payment; provided, however, that this Section 8.1(e) shall not apply to (1) any secured Indebtedness of any Clearing House Subsidiary that is recourse only to such Clearing House Subsidiary and its property and assets and has not been outstanding for more than 45 days since the borrowing thereof and (2) any unsecured Indebtedness of any Clearing House Subsidiary that is recourse only to such Clearing House Subsidiary and has not been outstanding for more than five Business Days since the borrowing thereof;

(f) athe Borrower or any Material Subsidiary shall (i) file a voluntary petition or commence a voluntary case seeking liquidation, winding-up, reorganization, dissolution, arrangement, readjustment of debts or any other relief under the Bankruptcy Code or under any other applicable Debtor Relief Law (except, in the case of the Subsidiary Borrower, in connection with any reorganization on a solvent basis permitted by Section 7.1), now or hereafter in effect, (ii) consent to the institution of, or fail to controvert in a timely and appropriate manner, any petition or case of the type described in Section 8.1(g), (iii) apply for or consent to the appointment of or taking possession by a custodian, trustee, receiver or similar official for or of itself or all or a substantial part of its properties or assets, (iv) fail generally, or admit in writing its inability, to pay its debts generally as they become due, (v) make a general assignment for the benefit of creditors or (vi) take any corporate action to authorize or approve any of the foregoing;

(g) any involuntary petition or case shall be filed or commenced against athe Borrower or any Material Subsidiary seeking liquidation, winding-up, reorganization, dissolution, arrangement, readjustment of debts, the appointment of a custodian, trustee, receiver or similar official for it or all or a substantial part of its properties or any other relief under the Bankruptcy Code or under any other Debtor Relief Law, now or hereafter in effect, and such petition or case shall continue undismissed and unstayed for a period of 60 days; or an order, judgment or decree approving or ordering any of the foregoing shall be entered in any such proceeding;

(h) a UK Insolvency Event shall occur in respect of the Subsidiary Borrower;[Reserved];

(i) any one or more money judgments, writs or warrants of attachment, executions or similar processes involving an aggregate amount (to the extent not paid or fully bonded or covered by insurance as to which the surety or insurer, as the case may be, has not denied or failed to acknowledge coverage) in excess of the Threshold Amount shall be entered or filed against athe Borrower or any of their respective Subsidiaries or any of their respective properties and the same shall not be paid, dismissed, bonded, vacated, stayed or discharged within a period of 30 days or in any event later than five days prior to the date of any proposed sale of such property thereunder;

 

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(j) a Change of Control shall have occurred;

(k) any ERISA Event shall occur or exist with respect to any Plan or Multiemployer Plan and, as a result thereof, together with all other ERISA Events, the Parent Borrower and its ERISA Affiliates have incurred, or would reasonably be expected to incur, liability to any one or more Plans or Multiemployer Plans or to the PBGC (or to any combination thereof) that would reasonably be expected to result in a Material Adverse Effect; or

(l) the Parent Borrower or any Subsidiary thereof shall have been notified that any of them has, in relation to a Non-U.S. Pension Plan, incurred a debt or other liability under section 75 or 75A of the United Kingdom Pensions Act 1995, or has been issued with a contribution notice or financial support direction (as those terms are defined in the United Kingdom Pensions Act 2004), or otherwise is liable to pay any other amount in respect of Non-U.S. Pension Plans, in each case that would reasonably be expected to result in a Material Adverse Effect.

8.2 Remedies: Termination of Commitments, Acceleration, etc. Upon and at any time after the occurrence and during the continuance of any Event of Default, the Administrative Agent shall at the direction, or may with the consent, of the Required Lenders, take any or all of the following actions at the same or different times:

(a) declare the Commitments to be terminated, whereupon the same shall terminate; provided that, upon the occurrence of a Bankruptcy Event, the Commitments, the Swingline Lenders’ obligation to make Swingline Loans and the Issuing Lender’s obligation to issue Letters of Credit shall automatically be terminated;

(b) declare all or any part of the outstanding principal amount of the Loans to be immediately due and payable, whereupon the principal amount so declared to be immediately due and payable, together with all interest accrued thereon and all other amounts payable under this Agreement and the other Credit Documents, shall become immediately due and payable without presentment, demand, protest, notice of intent to accelerate or other notice or legal process of any kind, all of which are hereby knowingly and expressly waived by eachthe Borrower; provided that, upon the occurrence of a Bankruptcy Event, all of the outstanding principal amount of the Loans and all other amounts described in this Section 8.2(b) shall automatically become immediately due and payable without presentment, demand, protest, notice of intent to accelerate or other notice or legal process of any kind, all of which are hereby knowingly and expressly waived by eachthe Borrower;

(c) appoint or direct the appointment of a receiver for the properties and assets of the BorrowersBorrower, both to operate and to sell such properties and assets, and eachthe Borrower, for itself and on behalf of its Subsidiaries, hereby consents to such right and such appointment and hereby waives any objection suchthe Borrower or any Subsidiary may have thereto or the right to have a bond or other security posted by the Administrative Agent on behalf of the Lenders, in connection therewith;

 

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(d) exercise all rights and remedies available to it under this Agreement, the other Credit Documents and applicable law; and

(e) direct the applicable Borrower to deposit (and eachthe Borrower hereby agrees, forthwith upon receipt of notice of such direction from the Administrative Agent, to deposit) with the Administrative Agent from time to time such additional amount of cash as is equal to the aggregate Stated Amount of all Letters of Credit then outstanding (whether or not any beneficiary under any Letter of Credit shall have drawn or be entitled at such time to draw thereunder), such amount to be held by the Administrative Agent in the Cash Collateral Account as security for the Letter of Credit Exposure as described in Section 2.19(i).

8.3 Remedies: Setoff. Upon and at any time after the occurrence and during the continuance of any Event of Default, each Lender, the Issuing Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the Issuing Lender or any such Affiliate to or for the credit or the account of athe Borrower (other than customer deposits, security deposits and other monies, instruments and accounts held by athe Borrower in trust for or for the benefit of others) against any and all of the obligations of suchthe Borrower now or hereafter existing under this Agreement or any other Credit Document to such Lender, the Issuing Lender or such Affiliate, irrespective of whether or not such Lender, the Issuing Lender or such Affiliate shall have made any demand under this Agreement or any other Credit Document and although such obligations of suchthe Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or the Issuing Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Lender, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the Issuing Lender and their respective Affiliates under this Section 8.3 are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Issuing Lender or their respective Affiliates may have. Each Lender and the Issuing Lender agrees to notify the applicable Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

ARTICLE IX

THE ADMINISTRATIVE AGENT

9.1 Appointment and Authority. Each of the Lenders (for purposes of this Article IX, references to the Lenders shall also mean each of Wells Fargo and BofA as a Swingline Lender) hereby irrevocably appoints the Administrative Agent and the Multicurrency Agent hereunder and under the other Credit Documents, and authorizes each of the Agents to take such actions on its

 

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behalf and to exercise such powers as are delegated to the Agents by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the benefit of the Agents and the Lenders, and neither the Parent Borrower nor any other Borrower shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Credit Documents (or any other similar term) with reference to the Administrative Agent or the Multicurrency Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. For purposes of this Section 9.1, the term “Administrative Agent” shall include both the Primary Administrative Agent and the Backup Administrative Agent.

9.2 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Parent Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

9.3 Exculpatory Provisions. The Agents shall not have any duties or obligations except those expressly set forth herein and in the other Credit Documents, and each of their duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, each of the Agents:

(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents); provided that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Credit Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

(c) shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any capacity.

 

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No Agent shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.5 and 8.2) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgement. Each Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent by athe Borrower or a Lender.

No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

No Agent shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Ineligible Assignees. Without limiting the generality of the foregoing, no Agent shall (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is an Ineligible Assignee or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information in reliance upon Sections 10.12(iv) or (vi) by such Agent, to any Ineligible Assignee.

9.4 Reliance by Administrative Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lender, the applicable Agent may presume that such condition is satisfactory to such Lender or the Issuing Lender unless such Agent shall have received notice to the contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for athe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

9.5 Delegation of Duties. Each Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective

 

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activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. No Agent shall be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

9.6 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders and the Parent Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Parent Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States; provided that if such bank is not a Lender or an Affiliate of a Lender, the Parent Borrower shall have the right to consent to such appointment (such consent to not be unreasonably withheld). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Parent Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Credit Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section 9.6. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.16(j) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the effective date of its resignation), and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Credit Documents (if not already discharged therefrom as provided above in this Section 9.6). The fees payable by the BorrowersBorrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the BorrowersBorrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Credit Documents, the provisions of this Article and Section 10.1 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while the retiring Administrative Agent was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Credit Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.

 

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9.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document or any related agreement or any document furnished hereunder or thereunder.

9.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers, Syndication Agent, Co-Documentation Agents or other agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.

9.9 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan or Reimbursement Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on anythe Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Reimbursement Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Lender and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Lender and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Lender and the Administrative Agent under Sections 2.9 and 10.1) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the Issuing Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Lender, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.9 and 10.1.

Notwithstanding anything in this Section 9.9 to the contrary, nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the Issuing Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the Issuing Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender or the Issuing Lender in any such proceeding.

 

 

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9.10 Guaranty Matters; Ineligible Assignees Letter Agreement. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion:

(a) To release any Guarantor (other than the Parent Borrower) from its obligations under any Subsidiary Guaranty as required under Section 5.9. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor (other than the Parent Borrower) from its obligations under any Subsidiary Guaranty pursuant to this Section 9.10.

(b) To consent to any amendment or modification to the Ineligible Assignees Letter Agreement on the date five Business Days after notice of such amendment or modification unless at least three Lenders (including, if applicable, Wells Fargo in its capacity as a Lender) that are not Affiliates of each other holding in the aggregate more than 25% of the Revolving Credit Exposures and Unutilized Commitments (or, after the termination of the Commitments, Revolving Credit Exposures) have notified the Administrative Agent of their objection to such amendment or modification prior to the expiration of such five Business Day period.

9.11 Swingline Lender. The provisions of this Article IX (other than Section 9.2) shall apply to the Administrative Agent in its capacity as a Swingline Lender mutatis mutandis to the same extent as such provisions apply to the Administrative Agent.

9.12 Replacement of Impaired Agent. If, at any time, during a Wells Fargo Unavailability Period, the Backup Administrative Agent becomes a Defaulting Lender, each Lender hereby agrees that, upon written notice from the Parent Borrower to the Lenders, the Parent Borrower shall have the right, upon written notice to the Lenders, to appoint as a successor Backup Administrative Agent any Lender that has an office in the United States and that agrees, in its sole discretion at such time, to become the Backup Administrative Agent, and such successor Backup Administrative Agent shall be entitled to all of the rights, powers, privileges and duties of the Backup Administrative Agent and the removed Backup Administrative Agent shall be discharged from all of its duties as Backup Administrative Agent hereunder and under the other Credit Documents. The Administrative Agent hereby agrees to provide to the Parent Borrower from time to time at the Parent Borrower’s request a list (which may be in electronic form) setting out the names of the Lenders as of the date of such request, their respective Commitments, and the information on record with the Administrative Agent for delivering notices to the Lenders in accordance with Section 10.4. Nothing in this Section 9.11 shall constitute a waiver or release by the Parent Borrower of any claims it may have hereunder or under the other Credit Documents arising from any Administrative Agent becoming a Defaulting Lender.

9.13 Backup Administrative Agent.

(a) Notwithstanding anything to the contrary contained in this Agreement or any of the other Credit Documents:

(i) during any Wells Fargo Availability Period, (A) all actions to be taken by the Administrative Agent under the Credit Documents will be taken by Wells Fargo in its capacity as the Primary Administrative Agent; (B) BofA will have no liability, and the other parties to this Agreement hereby release BofA from all liability, for any actions taken during this time by Wells Fargo in its capacity as the Primary Administrative Agent; and (C) if the BorrowersBorrower or the Required Lenders make the determination referred to in clause (a) of the definition of the term “Wells Fargo Unavailability Period,” then the BorrowersBorrower or the Required Lenders, as applicable, shall as promptly thereafter as is reasonably practicable notify each of the other parties to this Agreement of such determination and of the starting date of such Wells Fargo Unavailability Period;

(ii) during any Wells Fargo Unavailability Period, (A) all actions to be taken by the Administrative Agent under the Credit Documents will be taken by BofA in its capacity as the Backup Administrative Agent; (B) Wells Fargo will have no liability, and the other parties to this Agreement hereby release Wells Fargo from all liability, for any actions taken during this time by BofA in its capacity as the Backup Administrative Agent; and (C) if both the BorrowersBorrower and the Required Lenders determine in their reasonable discretion (x) that Wells Fargo is able to perform all the services required of it in its capacity as the Primary Administrative Agent and (y) that Wells Fargo is not a Defaulting Lender, then the BorrowersBorrower and the Required Lenders shall as promptly thereafter as is reasonably practicable notify each of the other parties to this Agreement of such determination and of the ending day of the Wells Fargo Unavailability Period.

 

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(b) During the time between the giving of the notice of the determination referred to in clause (b) of the definition of the term “Wells Fargo Unavailability Period” and the end of the Wells Fargo Unavailability Period, all parties shall work together to facilitate a smooth transition of responsibility back to the Primary Administrative Agent.

(c) Without limiting any other provision contained in any of the Credit Documents, each of the parties to this Agreement agrees to execute and deliver any and all further documents, agreements and instruments, and take all further actions, that any of the other parties to this Agreement may reasonably request in writing from time to time in order to effectuate this Section 9.13, including for the Primary Administrative Agent and the Backup Administrative Agent to keep the other reasonably informed to facilitate one replacing the other at the start or end of any Wells Fargo Unavailability Period.

(d) If any of the Primary Administrative Agent, the Backup Administrative Agent or the BorrowersBorrower from time to time reasonably requests in writing a test of the mechanism for the replacement of the Primary Administrative Agent with the Backup Administrative Agent, and vice versa, each of the parties to this Agreement agrees to reasonably cooperate with the other parties hereto to perform such test, all at the sole cost and expense of the BorrowersBorrower.

(e) Notwithstanding anything to the contrary herein or in any other Credit Document, any amendment to or waiver of (i) any provision of this ARTICLE IX, (ii) the definition of “Administrative Agent,” “Wells Fargo Availability Period” or “Wells Fargo Unavailability Period” or (iii) any other provision in this Agreement or any other Credit Document that, in the case of clauses (i), (ii) or (iii), affects the rights or duties of the Primary Administrative Agent or Backup Administrative Agent shall require the consent of the Primary Administrative Agent and/or the Backup Administrative Agent, as applicable.

ARTICLE X

MISCELLANEOUS

10.1 Expenses; Indemnity; Damage Waiver.

(a) The Parent Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Agents, the Arrangers and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for the Primary Administrative Agent, the Backup Administrative Agent and the Arrangers), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Credit Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket expenses incurred by the Agents or any Lender (including the reasonable and documented fees, charges and disbursements of any counsel for the Agents or any Lender), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Credit Documents, including its rights under this Section 10.1, or (B) in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans, (iii) all reasonable and documented out-of-pocket expenses incurred by the Issuing Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iv) any civil penalty or fine assessed by OFAC against, and all reasonable and documented costs and expenses (including counsel fees and disbursements) incurred in connection with defense thereof by, any Agent or any Lender as a result of conduct of athe Borrower that violates a sanction enforced by OFAC.

 

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(b) The Parent Borrower shall indemnify each Agent (and any sub-agent thereof), the Arrangers, each Lender, and each Related Party of any of the foregoing persons (each such person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages (including special, direct consequential or punitive damages), liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Parent Borrower or any Subsidiary thereof arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Credit Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Substances on or from any property owned or operated by the Parent Borrower or any Subsidiary thereof, or any Environmental Claim related in any way to the Parent Borrower or any Subsidiary thereof, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Parent Borrower or any Subsidiary thereof, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent (x) that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, (y) resulting from a claim brought the Parent Borrower or any Subsidiary thereof against such Indemnitee for a breach in bad faith of such Indemnitee’s obligations under this Agreement or any other Credit Document, if the Parent Borrower or such Subsidiary has obtained a final nonappealable judgment of a court of competent jurisdiction finding a breach in bad faith by such Indemnitee, or (z) arising from any dispute solely among Indemnitees, other than (A) any claims against any Agent, any Arranger or any other titled agent in fulfilling its role as an agent hereunder and (B) any claims arising out of any act or omission on the part of the Parent Borrower or any of its Affiliates or Subsidiaries. This Section 10.1(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

(c) To the extent that the Parent Borrower for any reason fails to indefeasibly pay any amount required under Section 10.1(a) or 10.1(b) to be paid by it to any Agent (or any sub-agent thereof), each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) such Lender’s proportion (based on the percentages as used in determining the Required Lenders as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for such Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this Section 10.1(c) are subject to the provisions of Section 2.3(c).

 

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(d) To the fullest extent permitted by applicable law, eachthe Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems (including IntraLinks, SyndTrak or similar systems) in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except as a result of such Indemnitee’s gross negligence, willful misconduct or breach in bad faith of its obligations hereunder, in each case, as determined by a court of competent jurisdiction by final and nonappealable judgment.

(e) To the fullest extent permitted by applicable law, each Agent, the Arrangers, each Lender, and each Related Party of any of the foregoing persons shall not assert, and hereby waives, any claim against any Credit Party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby or the transactions contemplated hereby or thereby; provided that the foregoing shall not in any way limit the Credit Parties’ or Lenders’ respective indemnification obligations hereunder, including under Section 10.1(b) and 10.1(c), respectively.

(f) All amounts due under this Section 10.1 shall be payable by the Parent Borrower upon demand therefor.

10.2 Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of Process.

(a) This Agreement and the other Credit Documents shall (except as may be expressly otherwise provided in any Credit Document) be governed by, and construed in accordance with, the law of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and conflicts of law rules); provided that each Letter of Credit shall be governed by, and construed in accordance with, the laws or rules designated in such Letter of Credit or application therefor or, if no such laws or rules are designated, the International Standby Practices of the International Chamber of Commerce, as in effect from time to time (the “ISP”), and, as to matters not governed by the ISP, the laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and conflicts of law rules).

(b) EachThe Borrower irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan in the State of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Credit Document, or for recognition or enforcement of any judgment, and each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such state court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be

 

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conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any Credit Document shall affect any right that the Administrative Agent, any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Credit Document against athe Borrower or any of their respective properties in the courts of any jurisdiction.

(c) EachThe Borrower irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Credit Document in any court referred to in Section 10.2(b). Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 10.4. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law. The Subsidiary Borrower irrevocably designates and appoints the Parent Borrower, as its authorized agent, to accept and acknowledge on its behalf, service of any and all process which may be served in any suit, action or proceeding of the nature referred to in Section 10.2(b) in any state or federal court sitting in the Borough of Manhattan in the State of New York. The Parent Borrower accepts such appointment. Said designation and appointment shall be irrevocable by the Subsidiary Borrower until all Obligations payable by the Subsidiary Borrower hereunder and under the other Credit Documents shall have been paid in full in accordance with the provisions hereof and thereof and the Subsidiary Borrower shall have been terminated as a Borrower hereunder. The Subsidiary Borrower hereby consents to process being served in any suit, action or proceeding of the nature referred to in Section 10.2(b) in any state or federal court sitting in the Borough of Manhattan in the State of New York as provided in this Section 10.2(d). The Subsidiary Borrower irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of any such service in such manner and agrees that such service shall be deemed in every respect effective service of process upon the Subsidiary Borrower in any such suit, action or proceeding and shall, to the fullest extent permitted by law, be taken and held to be valid and personal service upon and personal delivery to the Subsidiary Borrower. To the extent the Subsidiary Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether from service or notice, attachment prior to judgment, attachment in aid of execution of a judgment, execution or otherwise), the Subsidiary Borrower hereby irrevocably waives such immunity in respect of its obligations under the Credit Documents.

10.3 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE

 

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FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.3.

10.4 Notices; Effectiveness; Electronic Communication.

(a) Except in the cases of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 10.4(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:

(i) if to athe Borrower, the Primary Administrative Agent, the Backup Administrative Agent, any Multicurrency Agent or the Issuing Lender, to it at the address (or facsimile number) specified for such Person on Schedule 1.1(a); and

(ii) if to any Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in Section 10.4(b) shall be effective as provided in Section 10.4(b).

(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Each of the Administrative Agent and the Parent Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communication pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) (provided that, if such notice or other communication is not sent during the normal business hours of the recipient, then such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient) and (ii) notices or other communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

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(c) Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto (except that each Lender need not give notice of any such change to the other Lenders in their capacities as such).

10.5 Amendments, Waivers, etc. No amendment, modification, waiver or discharge or termination of, or consent to any departure by athe Borrower from, any provision of this Agreement or any other Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:

(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon (provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), or reduce or forgive any fees hereunder (other than fees payable to the Administrative Agent or the Arrangers for their own accounts) shall not constitute a reduction of any interest rate or fees hereunder), (ii) waive, extend or postpone the final scheduled maturity date or any other scheduled date for the payment of any principal of or interest on any Loan (including any scheduled date for the mandatory termination of any Commitments), or waive, extend or postpone the time of payment of any fees hereunder (other than fees payable to the Administrative Agent or the Arrangers for their own accounts), or waive, extend or postpone the time of payment of any Reimbursement Obligation or any interest thereon, or waive, extend or postpone the expiry date of any Letter of Credit beyond the Letter of Credit Maturity Date, or (iii) increase any Commitment of any such Lender over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any condition precedent set forth in Section 3.2 or of any Default or Event of Default or mandatory termination of the Commitments, if agreed to by the Required Lenders, Required Dollar Revolving Lenders, Required Multicurrency Revolving Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase);

(b) unless agreed to by all of the Lenders, (i) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”), (ii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, (iii) release the Parent Borrower of its guaranty under Article XI[Reserved] or (iv) change or waive any provision of Section 2.12(e) or 2.14, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders, or this Section 10.5;

(c) change any provisions of any Credit Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class differently than those of Lenders holding Loans of any other Class without the written consent of the requisite percentage in interest of each affected Class of Lenders (i.e., the Required Dollar Revolving Lenders or the Required Multicurrency Revolving Lenders, as applicable); and

 

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(d) unless agreed to by each Multicurrency Revolving Lender, amend the definition of Foreign Currency;

provided further that (i) no amendment, waiver or consent shall, unless in writing and signed by the Issuing Lender in addition to the Lenders required above, affect the rights or duties of the Issuing Lender under this Agreement or any other Credit Document relating to the Dollar L/C Commitment, the Multicurrency L/C Commitment or any Letter of Credit issued or to be issued by it, (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement, (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Credit Document, (iv) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (v) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by the BorrowersBorrower and the Required Dollar Revolving Lenders or the Required Multicurrency Revolving Lenders, as applicable, (vi) the Administrative Agent and the Parent Borrower shall be permitted to amend any provision of the Credit Documents (and such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in writing by the Required Lenders within five Business Days after notice thereof) if the Administrative Agent and the Parent Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision and (vii) the Ineligible Assignees Letter Agreement may be amended in accordance with Section 9.10(b). Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.

Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as set forth above, each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein.

10.6 Successors and Assigns.

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 10.6(b), (ii) by way of participation in accordance with the provisions of Section 10.6(d) or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.6(g) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns

 

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permitted hereby, Participants to the extent provided in Section 10.6(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans (including for purposes of this Section 10.6(b), participations in Swingline Loans and Letters of Credit) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i) The prior written consent of the Administrative Agent, each Swingline Lender, the Issuing Lender and the Parent Borrower (such consent not to be unreasonably withheld or delayed) is obtained, except that

(A) the consent of the Parent Borrower shall not be required if (y) an Event of Default has occurred and is continuing at the time of such assignment; (z) with respect to any assignment by such Lender of any of its rights and obligations other than its obligations to make Swingline Loans, such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; or (z) with respect to any assignment by such Lender of any if its obligations to make Swingline Loans, such assignment is to a Swingline Lender of the applicable Class or an Affiliate or Approved Fund of any such Swingline Lender; provided that the Parent Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 10 Business Days after having received written notice thereof; and

(B) the consent of the Administrative Agent shall not be required for assignments in respect of a Commitment if such assignment is to a Person that is a Revolving Lender or an Affiliate of a Revolving Lender;

(ii) (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans of a Class at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned, and (B) in any case not described in clause (A) above, the aggregate amount of the Commitment of a Class (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of a Class of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000, in the case of any assignment in respect of a Commitment of a Class (which for this purpose includes Revolving Loans of such Class outstanding), in any case, treating assignments to two or more Approved Funds under common management as one assignment for purposes of the minimum amounts, unless each of the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, the Parent Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);

 

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(iii) (x) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or Commitment of a Class assigned and (y) if the applicable assignee so agrees, any assignment, whether partial or complete, by an assigning Lender who is obligated to make Swingline Loans under Section 2.2 or who has any Swingline Loans outstanding at the time it assigns any of its rights and obligations under this Agreement with respect to its Loans or Commitment of a Class shall include the assignment of a proportionate part of (1) its obligations to make Swingline Loans of such Class under Section 2.2, if any, and (2) its outstanding Swingline Loans of such Class, if any;

(iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 for each assignment and the assignee, if it is not a Lender of the applicable Class, shall deliver to the Administrative Agent an Administrative Questionnaire;

(v) no such assignment shall be made to the Parent Borrower or any of the Parent Borrower’s Affiliates or Subsidiaries;

(vi) no such assignment shall be made to a natural person (or a holding company, investment vehicle or trust owned or created for the primary benefit of a natural person) or a Defaulting Lender; and

(vii) no such assignment shall be made to any Ineligible Assignee.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.6(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.15(a), 2.15(b), 2.16, 2.17 and 10.1 with respect to facts and circumstances occurring prior to the effective date of such assignment. If requested by or on behalf of the assignee, the BorrowersBorrower, at theirits own expense, will execute and deliver to the Administrative Agent a new Note or Notes to the order of the assignee (and, if the assigning Lender has retained any portion of its rights and obligations hereunder, to the order of the assigning Lender), prepared in accordance with the applicable provisions of Section 2.4 as necessary to reflect, after giving effect to the assignment, the Commitments and/or outstanding Loans, as the case may be, of the assignee and (to the extent of any retained interests) the assigning Lender, in substantially the form of Exhibits A-1 and/or A-2, as applicable. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.6(d). If (A) a Lender assigns or transfers any of its rights or obligations hereunder or changes its Lending Office and

 

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(B) as a result of circumstances existing at the date such assignment, transfer or change occurs, athe Borrower would be obliged to make a payment to the new Lender or Lender acting through its new Lending Office under Section 2.15 or 2.16, then (except where an assignment or transfer occurs in the ordinary course of primary syndication of the Loan facilities or at the request of the Parent Borrower) the new Lender or Lender acting through its new Lending Office is only entitled to receive payment under Sections 2.15 and 2.16 to the same extent that the existing Lender or Lender acting through its previous Lending Office would have been entitled if the assignment, transfer or change had not occurred.

(c) The Administrative Agent, acting solely for this purpose as an agent of the BorrowersBorrower, shall maintain at its address for notices referred to in Schedule 1.1(a) a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the BorrowersBorrower and each Lender, at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Credit Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from the Administrative Agent a copy of the Register.

(d) Any Lender may at any time, without the consent of, or notice to, the BorrowersBorrower, the Administrative Agent, the Issuing Lender or any Swingline Lender, sell participations to any Person (other than a natural person, an Ineligible Assignee, the Parent Borrower or any of the Parent Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitments and/or the Loans (including such Lender’s participations in Swingline Loans and Letters of Credit) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the BorrowersBorrower, the Agents, the Lenders and the Swingline Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.

(e) Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in Section 10.5(a) and clause (i) of Section 10.5(b) that affects such Participant.

(f) The Borrowers agreeBorrower agrees that each Participant shall be entitled to the benefits of Sections 2.15(a), 2.15(b), 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.16 (it being understood that the

 

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documentation required under Section 2.16(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.6(b); provided that no Borrower shall be required to make, and such Participant shall not be entitled to receive, any greater payment under Section 2.15 or 2.16, with respect to any participation, than suchthe Borrower would have been required to make to the relevant participating Lender, and such participating Lender would have been entitled to receive from suchthe Borrower, except to the extent such requirement to make and/or entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation; provided further that such Participant agrees to be subject to the provisions of Section 2.18 as if it were an assignee under Section 10.6(b). Each Lender that sells a participation agrees, at athe Borrower’s request and expense, to use reasonable efforts to cooperate with eachthe Borrower to effectuate the provisions of Section 2.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.3 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.14(b) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an non-fiduciary agent of the BorrowersBorrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(g) Any Lender may at any time pledge or assign, or grant a security interest in, all or any portion of its rights under this Agreement (including under its Notes, if any) to secure obligations of such Lender, including any pledge or assignment or grant to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment or grant shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee or grantee for such Lender as a party hereto.

(h) The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act or any state laws based on the Uniform Electronic Transactions Act.

 

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(i) Any Lender or participant may, in connection with any assignment, participation, pledge or proposed assignment, participation or pledge pursuant to this Section 10.6, disclose to the assignee, Participant or pledgee or proposed assignee, Participant or pledgee any information relating to the Parent Borrower and its Subsidiaries furnished to it by or on behalf of any other party hereto; provided that such assignee, Participant or pledgee or proposed assignee, Participant or pledgee agrees in writing to keep such information confidential to the same extent required of the Lenders under Section 10.12.

(j) Notwithstanding anything to the contrary contained herein, if Wells Fargo assigns all of its Commitments and Loans in accordance with this Section 10.6, Wells Fargo may resign as Issuing Lender upon written notice to the Parent Borrower and the Lenders. Upon any such notice of resignation, the Parent Borrower shall have the right to appoint from among the Lenders a successor Issuing Lender; provided that no failure by the Parent Borrower to make such appointment shall affect the resignation of Wells Fargo as Issuing Lender. Wells Fargo shall retain all of the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit issued by it and outstanding as of the effective date of its resignation and all obligations of the BorrowersBorrower and the Revolving Lenders with respect thereto (including the right to require the Revolving Lenders to make Revolving Loans or fund participation interests pursuant hereto).

(k) Assignments by Swingline Lenders. In the case of any assignment by any Swingline Lender of any of its commitment to make Swingline Loans hereunder where the assignee party has not assumed such Swingline Lender’s commitment to make Swingline Loans, such Swingline Lender shall retain all of the rights powers and privileges of a “Swingline Lender” hereunder, including the right to require the Revolving Lenders to make Revolving Loans or fund participation interests pursuant to Sections 2.2(e) and 2.2(f), and, until any resignation as an Swingline Lender as permitted in the immediately following sentence, shall retain all of the obligations of a “Swingline Lender” hereunder. Notwithstanding anything to the contrary contained herein and without limiting any Swingline Lender’s right to assign its Commitments and Loans or its commitment to make Swingline Loans at any time, in the event of any assignment by a Swingline Lender of all of its Commitments and Loans at a time when an Event of Default has occurred and is continuing (or at such other time with the consent of the Parent Borrower, such consent not to be unreasonably withheld) such Swingline Lender may resign as a Swingline Lender; provided that, in the case of any such resignation, (x) such Swingline Lender shall retain all the rights, powers and privileges of a “Swingline Lender” provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Revolving Lenders to make Revolving Loans or fund participation interests in outstanding Swingline Loans pursuant to Sections 2.2(e) and 2.2(f) and (y) the Parent Borrower shall be entitled to appoint from among the Lenders (which such Lenders may accept such appointment in their sole discretion) a successor Swingline Lender hereunder, provided, however, that no failure by the Parent Borrower to appoint any such successor shall affect such resignation of such Swingline Lender.

10.7 No Waiver. The rights and remedies of the Primary Administrative Agent, the Backup Administrative Agent and the Lenders expressly set forth in this Agreement and the other Credit Documents are cumulative and in addition to, and not exclusive of, all other rights and remedies available at law, in equity or otherwise. No failure or delay on the part of the Primary Administrative Agent, the Backup Administrative Agent or any Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any

 

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such right, power or privilege preclude other or further exercise thereof or the exercise of any other right, power or privilege or be construed to be a waiver of any Default or Event of Default. No course of dealing between athe Borrower, the Primary Administrative Agent, the Backup Administrative Agent or the Lenders or their agents or employees shall be effective to amend, modify or discharge any provision of this Agreement or any other Credit Document or to constitute a waiver of any Default or Event of Default. No notice to or demand upon athe Borrower in any case shall entitle athe Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of the Primary Administrative Agent, the Backup Administrative Agent or any Lender to exercise any right or remedy or take any other or further action in any circumstances without notice or demand.

10.8 Survival. All representations, warranties and agreements made by or on behalf of the BorrowersBorrower in this Agreement and in the other Credit Documents shall survive the execution and delivery hereof or thereof and the making and repayment of the Loans until the indefeasible payment in full of the Obligations. In addition, notwithstanding anything herein or under applicable law to the contrary, the provisions of this Agreement and the other Credit Documents relating to indemnification or payment of costs and expenses, including the provisions of Sections 2.15(a), 2.15(b), 2.16, 2.17 and 10.1, shall survive the payment in full of all Loans and Letters of Credit, the termination of the Commitments and any termination of this Agreement or any of the other Credit Documents. Except as set forth above, this Agreement and the Credit Documents shall be deemed terminated upon the indefeasible payment in full of the Obligations.

10.9 Severability. To the extent any provision of this Agreement is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Agreement in any jurisdiction.

10.10 Construction. The headings of the various articles, sections and subsections of this Agreement and the table of contents have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof. Except as otherwise expressly provided herein and in the other Credit Documents, in the event of any inconsistency or conflict between any provision of this Agreement and any provision of any of the other Credit Documents, the provision of this Agreement shall control.

10.11 No Fiduciary Duty. Each Agent, the Arrangers and the Lenders and their respective Affiliates (collectively, the “Lender Parties”), may have economic interests that conflict with those of the BorrowersBorrower and their respectiveits Affiliates. EachThe Borrower agrees that nothing in the Agreement or the other Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender Party, on the one hand, and suchthe Borrower or any of its Affiliates, on the other. EachThe Borrower acknowledges and agrees that (i) the transactions contemplated by this Agreement and the other Credit Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lender Parties, on the one hand, and the BorrowersBorrower, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender Party has assumed an advisory or fiduciary responsibility in favor of anythe Borrower or their respective Affiliates with respect to the

 

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transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender Party has advised, is currently advising or will advise anythe Borrower or its Affiliates on other matters) or any other obligation to anythe Borrower except the obligations expressly set forth in the Credit Documents and (y) each Lender Party is acting solely as principal and not as the agent or fiduciary of the BorrowersBorrower, their respective Affiliates or any other Person. EachThe Borrower acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to the transactions contemplated hereby and the process leading thereto. EachThe Borrower agrees that it will not claim that any Lender Party has rendered advisory services of any nature or respect, or owes a fiduciary or agency duty or similar duty to suchthe Borrower, in connection with the transactions contemplated hereby or the process leading thereto.

10.12 Confidentiality. Each of the Primary Administrative Agent, the Backup Administrative Agent and the Lenders agree to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and other representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iii) to the extent required by applicable Requirements of Law or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 10.12, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (B) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the BorrowersBorrower and theirits obligations or (C) credit insurers and reinsurers, (vii) if required by any rating agency; provided that prior to any such disclosure, such rating agency shall have agreed in writing to maintain the confidentiality of such Information and the Parent Borrower shall have been given prior notice as to what Information will be disclosed, (viii) with the consent of the Parent Borrower or (ix) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section 10.12 or (B) becomes available to the Primary Administrative Agent, the Backup Administrative Agent, any Lender or any of their respective Affiliates on a non-confidential basis from a source other than the Parent Borrower or any of its Subsidiaries or Affiliates.

For purposes of this Section 10.12, “Information” means all information received from the Parent Borrower or any Subsidiary thereof relating to any such Person or any of their respective businesses, other than any such information that is available to the Primary Administrative Agent, the Backup Administrative Agent or any Lender on a nonconfidential basis prior to such disclosure or is identified by the Parent Borrower as nonconfidential. Any Person required to maintain the confidentiality of Information as provided in this Section 10.12 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

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10.13 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Credit Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof (except for the Fee Letters). Except as provided in Section 3.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile (or by PDF formatted page sent by electronic mail) shall be effective as delivery of a manually executed counterpart of this Agreement.

10.14 Disclosure of Information. EachThe Borrower agrees and consents to the Primary Administrative Agent’s, the Backup Administrative Agent’s and the Arrangers’ disclosure of information relating to this transaction to Gold Sheets and other similar bank trade publications. Such information will consist of deal terms and other information customarily found in such publications.

10.15 USA Patriot Act Notice. Each Lender that is subject to the Act (as defined below) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Parent Borrower and each Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies eachthe Borrower, which information includes the name and address of suchthe Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify suchthe Borrower in accordance with the Act.

10.16 The Parent Borrower as Agent for the Subsidiary Borrower.[Reserved].

(a) The Subsidiary Borrower hereby irrevocably appoints the Parent Borrower as its borrowing agent and attorney-in-fact which appointment shall remain in full force and effect unless and until Administrative Agent shall have received prior written notice signed by the Parent Borrower that it has resigned such position. The Subsidiary Borrower hereby irrevocably appoints and authorizes the Parent Borrower to (i) provide all notices and instructions under this Agreement on its behalf and (ii) take such action as the Parent Borrower deems appropriate on its behalf to obtain Loans and other extensions of credit and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement. The Subsidiary Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by the Parent Borrower shall be deemed for all purposes to have been made by the Subsidiary Borrower and shall be binding upon and enforceable against the Subsidiary Borrower to the same extent as if the same had been made directly by the Subsidiary Borrower.

 

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(b) Each Borrower hereby severally agrees to indemnify each Lender and the Administrative Agent and hold each Lender and the Administrative Agent harmless against any and all liability, expense, loss or claim of damage or injury, made against the Lenders and the Administrative Agent by such Borrower or by any third party whosoever, arising from or incurred by reason of the Lenders’ or the Administrative Agent’s relying on any instructions of the Parent Borrower on behalf of the Subsidiary Borrower, except that such Borrower will have no liability under this Section 10.16(b) with respect to any liability that has been finally determined by final nonappealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such Lender or the Administrative Agent.

10.17 Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from anythe Borrower or any Guarantor in the currency expressed to be payable herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such other currency at the Administrative Agent’s main Charlotte, North Carolina, office on the Business Day preceding that on which final, nonappealable judgment is given. The obligations of eachthe Borrower or the Guarantor in respect of any sum due to any Lender, the Issuing Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Lender, the Issuing Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender, the Issuing Lender or the Administrative Agent (as the case may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Lender, the Issuing Lender or the Administrative Agent, as the case may be, in the specified currency, eachthe Borrower and Guarantor agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender, the Issuing Lender or the Administrative Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Lender, the Issuing Lender or the Administrative Agent, as the case may be, in the specified currency and (b) any amounts shared with other Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under Section 2.14(b), such Lender, the Issuing or the Administrative Agent, as the case may be, agrees to remit such excess to suchthe Borrower or such Guarantor.

10.18 Termination of Terminating Credit Facilities. The Lenders that are lenders under the Terminating Credit Facilities hereby waive the requirements thereunder related to the date by which notice of prepayment in full and termination of such credit facilities must be delivered[Reserved].

10.19 Not a Grandfathered Obligation. For purposes of determining withholding Taxes imposed under FATCA, from and after the ThirdFifth Amendment Effective Date, the BorrowersBorrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of United States Treasury Regulation Section 1.1471-2(b)(2)(i).

 

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ARTICLE XI

GUARANTY BY THE PARENT BORROWER

11.1 The Guaranty. In order to induce the Lenders to enter into this Agreement and to extend credit hereunder and in recognition of the direct benefits to be received by the Parent Borrower from the proceeds of the Loans and other extensions of credit, the Parent Borrower hereby unconditionally, absolutely and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment (whether at stated maturity, upon acceleration or otherwise) of all Obligations of the Subsidiary Borrower under the Credit Documents including the principal of and interest on the Loans owing by the Subsidiary Borrower pursuant to this Agreement, all Reimbursement Obligations of the Subsidiary Borrower . This guaranty is a guaranty of payment and not of collection.

11.2 Guaranty Unconditional. The obligations of the Parent Borrower under this Article XI shall be unconditional, absolute and irrevocable and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:

10.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of any other obligor under any of the Credit Documents, by operation of law or otherwise;the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b) any modification or amendment of or supplement to any of the Credit Documents;the effects of any Bail-In Action on any such liability, including, if applicable:

(c) any release, non-perfection, invalidity or impairment of any direct or indirect security for any obligation of any other obligor under any of the Credit Documents

(i) a reduction in full or in part or cancellation of any such liability;

(d) any change in the corporate existence, structure or ownership of any obligor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other obligor or its assets or any resulting release or discharge of any obligation of any other obligor contained in any of the Credit Documents;

(e) the existence of any claim, setoff or other rights which any obligor may have at any time against any other obligor, the Primary Administrative Agent, the Backup Administrative Agent, any Lender or any other Person, whether in connection with any of the Credit Documents or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;

 

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(f) any invalidity or unenforceability relating to or against any other obligor for any reason of any of the Credit Documents, or any provision of applicable law or regulation purporting to prohibit the payment by any other obligor of principal, interest or any other amount payable under any of the Credit Documents;

(g) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation or the Lenders’ rights with respect thereto; or

(h) any other act or omission to act or delay of any kind by any obligor, the Primary Administrative Agent, the Backup Administrative Agent, any Lender or any other Person or any other circumstance whatsoever (other than the defense of payment) which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to the Parent Borrower’s obligations under this Article XI.

11.3 Duty Only Upon Payment in Full; Reinstatement in Certain Circumstances. The Parent Borrower’s obligations under this Article XI shall remain in full force and effect until the Commitments of the Lenders hereunder shall have terminated and all Obligations payable by the Subsidiary Borrower under the Credit Documents shall have been indefeasibly paid in full. If at any time any payment of the principal of or interest on any Loan or any other Obligation payable by the Subsidiary Borrower under the Credit Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Subsidiary Borrower or otherwise, the Parent Borrower’s obligations under this Article XI with respect to such payment shall be reinstated as though such payment had been due but not made at such time.

11.4 Waiver by the Parent Borrower. The Parent Borrower irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for in this Article XI, as well as any requirement that at any time any action be taken by any Person against the Subsidiary Borrower, any other obligor or any other Person or against any collateral security. The Parent Borrower warrants and agrees that each waiver set forth in this Section 11.4 is made with full knowledge of its significance and consequences, and such waivers shall be effective to the maximum extent permitted by law.

11.5 Subrogation. The Parent Borrower hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Subsidiary Borrower or any other guarantor that arise from the existence, payment, performance or enforcement of the Parent Borrower’s obligations under or in respect of this Article XI or any other Credit Document, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Lender against the Subsidiary Borrower or any other guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Subsidiary Borrower or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all Obligations payable under this Agreement shall have been paid in full in cash and the Commitments of the Lenders hereunder shall have expired or been

 

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terminated. If any amount shall be paid to the Parent Borrower in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of all Obligations and (b) the Final Termination Date, such amount shall be received and held in trust for the benefit of the Lenders, shall be segregated from other property and funds of the Parent Borrower and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to all amounts payable under this guaranty, whether matured or unmatured, in accordance with the terms of the Credit Documents, or to be held as collateral for any amounts payable under this Article XI thereafter arising. If (i) the Parent Borrower shall make payment to any Lender of all or any amounts payable under this Article XI, (ii) all Obligations shall have been paid in full in cash and (iii) the Final Termination Date shall have occurred, the Lenders will, at the Parent Borrower’s request and expense, execute and deliver to the Parent Borrower appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Parent Borrower of an interest in the obligations resulting from such payment made by the Parent Borrower pursuant to this Article XI.

11.6 Stay of Acceleration. If acceleration of the time for payment of any amount payable by the Subsidiary Borrower under any of the Credit Documents is stayed upon the insolvency, bankruptcy or reorganization of the Subsidiary Borrower, all such amounts otherwise subject to acceleration under the terms of this Agreement shall nonetheless be payable by the Parent Borrower under this Article XI forthwith on demand by the Administrative Agent made at the request of the Required Lenders.

11.7 Continuing Guaranty; Assignments. The guaranty set forth in this Article XI is a continuing guaranty and shall (i) remain in full force and effect until the later of (A) the indefeasible payment in full in cash of all Obligations payable under this Agreement and (B) the Final Termination Date, (ii) be binding upon the Parent Borrower, its successors and assigns and (iii) inure to the benefit of and be enforceable by the Administrative Agent and the Lenders and their respective successors, transferees and assigns.

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

 

1	NTD: Original Maturity Date concept will be deleted if all Lenders approve the tenor extension.

 

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Exhibit B

Amended Exhibit C to the Credit Agreement

[see attached]