UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
 
FORM 8-K
 
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
 
Date of report (Date of earliest event reported) February 3, 2016
 
W. R. GRACE & CO.
(Exact Name of Registrant as Specified in Its Charter)
 
Delaware
(State or Other Jurisdiction of Incorporation)
 
1-13953
 
65-0773649
(Commission File Number)
 
(IRS Employer Identification No.)
 
7500 Grace Drive
 
 
Columbia, Maryland
 
21044
(Address of Principal Executive Offices)
 
(Zip Code)
 
(410) 531-4000
(Registrant’s Telephone Number, Including Area Code)
 
 
(Former Name or Former Address, if Changed Since Last Report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 





W. R. GRACE & CO.
FORM 8-K
CURRENT REPORT
 
Item 1.01    Entry into a Material Definitive Agreement
GCP Credit Agreement
On February 3, 2016, GCP Applied Technologies Inc. (“GCP”), a wholly owned indirect subsidiary of W. R. Grace & Co. (“Grace”), entered into a Credit Agreement (the “Credit Agreement”), by and among GCP, as the borrower, Grace Construction Products Limited, a limited liability company incorporated under the laws of England and Wales, and Grace NV, a public limited liability company (naamloze vennootschap/société anonyme) organized and existing under the laws of Belgium, together as the European borrowers (the “European Borrowers”), each lender from time to time party thereto and Deutsche Bank AG New York Branch, as the administrative agent. The Credit Agreement provides for new senior secured credit facilities (the “Credit Facilities”) in an aggregate principal amount of $525.0 million, consisting of term loans (the “Term Loans”) in an aggregate principal amount of $275.0 million maturing in 2022 and of revolving loans (the “Revolving Loans”) in an aggregate principal amount of $250.0 million maturing in 2021, which were undrawn at closing. The European Borrowers may draw upon the Revolving Loans up to a sublimit of $50.0 million.
Subject to customary conditions and restrictions, GCP may obtain incremental term loans, revolving loans and/or notes in an aggregate amount not to exceed (a) $175.0 million, plus (b) the amount of all voluntary prepayments and commitment reductions under the Credit Facilities, plus (c) additional amounts provided, in the case of clause (c), the total secured leverage ratio calculated on a pro forma basis is equal to or less than 1.00:1.00.
GCP used certain of the proceeds from the Credit Facilities to fund a distribution to Grace in an amount of $250.0 million in connection with the Separation and the Distribution, as described in Item 2.01 below, and will use the remainder of the proceeds (i) to pay fees and expenses related to the spin-off from Grace, borrowings under the Credit Facilities and any related transactions and (ii) for general corporate purposes.
The interest rate per annum applicable to the Term Loans under the Credit Facilities is equal to, at GCP’s option, either a base rate plus a margin of 3.50% or LIBOR plus a margin of 4.50%. The interest rate per annum applicable to the Revolving Loans is equal to, at GCP’s option, either a base rate plus a margin ranging from 0.50% to 1.00% or LIBOR plus a margin ranging from 1.50% to 2.00%, in either case based upon the total leverage ratio of GCP and its restricted subsidiaries. The LIBOR rate with respect to the Term Loans is subject to a “floor” of 0.75%. In addition, GCP will pay a commitment fee on the unused portion of the Revolving Loan commitments of 0.375% per annum times the daily amount by which the aggregate U.S. revolving commitments exceed the sum of (i) the outstanding amount of Revolving Loans and (ii) the outstanding amount of letter of credit obligations.
The Term Loans will amortize in equal quarterly installments in aggregate annual amounts equal to 1.00% of the original principal amount thereof. The Revolving Loans are not subject to interim amortization. The Term Loans are subject to standard mandatory prepayment provisions including (1) 100% of the net cash proceeds from issuances or incurrence of debt by GCP or any of its restricted subsidiaries (other than with respect to certain permitted indebtedness); (2) 100% of the net cash proceeds from certain sales or other dispositions of assets by GCP or any of its restricted subsidiaries in excess of a certain amount and subject to customary reinvestment provisions and certain other exceptions; and (3) 50% (with step-downs to 25% and 0% based upon achievement of specified first lien leverage ratios) of annual (commencing with the 2017 fiscal year) excess cash flow of GCP and its restricted subsidiaries, subject to customary exceptions and limitations.
The Credit Facilities will be guaranteed, jointly and severally, by certain of GCP’s existing and future wholly owned domestic subsidiaries (the “Guarantors”) and secured by a first-priority security interest in substantially all of the assets of GCP and the Guarantors. The Credit Facilities contain customary covenants that, among other things, restrict, subject to certain exceptions, GCP and its restricted subsidiaries’ ability to grant liens on GCP and its restricted subsidiaries’ assets, incur indebtedness, sell assets, make investments, engage in acquisitions, mergers or consolidations and pay certain dividends and other restricted payments. The Credit Facilities require GCP to comply with financial maintenance covenants to be tested quarterly, consisting of a maximum total leverage ratio and minimum interest coverage ratio.





The Credit Facilities also contain certain customary events of default, including, but not limited to: (i) failure to pay principal, interest, fees or other amounts under the Credit Agreement when due, taking into account any applicable grace period; (ii) any representation or warranty proving to have been incorrect in any material respect when made; (iii) failure to perform or observe covenants or other terms of the Credit Agreement subject to certain grace periods; (iv) a cross-default and cross-acceleration with certain other material debt; (v) bankruptcy events; (vi) certain defaults under ERISA; and (vii) the invalidity or impairment of security interests.
The foregoing summary description of the Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K (this “Current Report”) and is incorporated herein by reference.
Item 2.01.
Completion of Acquisition or Disposition of Assets.

As previously disclosed, on January 27, 2016, Grace and its wholly owned subsidiary W.R. Grace & Co.-Conn., entered into a Separation and Distribution Agreement (the “Separation Agreement”) with GCP, pursuant to which Grace agreed to transfer its construction products business, and its packaging technologies business operated under the “Darex” name, to GCP (the “Separation”), and distribute all of the Grace-owned common stock of GCP to Grace’s stockholders in a distribution intended to be generally tax-free to Grace’s stockholders (the “Distribution”). The Separation and Distribution were completed on February 3, 2016. The Distribution, which was effective at 6:00 p.m., Eastern Time, on February 3, 2016 (the “Effective Time”), was made to Grace stockholders of record as of the close of business on January 27, 2016 (the “Record Date”). One share of GCP common stock was distributed for each share of Grace common stock held as of the Record Date. Grace did not distribute fractional shares of GCP common stock in the Distribution. Fractional shares to which Grace’s stockholders would have otherwise been entitled were aggregated by the distribution agent and are for sale in the public market. In accordance with the Separation Agreement, the net cash proceeds of these sales will be distributed pro rata to those stockholders who would otherwise have been entitled to receive a fractional share in the Distribution.
As a result of the Distribution, GCP is now an independent public company and its common stock is listed under the symbol “GCP” on the New York Stock Exchange (“NYSE”).
A copy of the press release issued by Grace on February 3, 2016 announcing completion of the Separation and Distribution is filed as Exhibit 99.1 to this Current Report and is incorporated by reference herein.

Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information included in Item 1.01 of this Current Report is incorporated by reference into this Item 2.03.

Item 5.02.
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Resignation of Officers
In connection with the Separation and Distribution, Gregory E. Poling, who previously served as Grace’s President and Chief Operating Officer, resigned from his position at Grace. Mr. Poling currently serves as President and Chief Executive Officer, and as a member of the board of directors, of GCP.
Resignation of Directors
Also in connection with the Separation and Distribution, each of Ronald C. Cambre, Marye Anne Fox and Janice K. Henry resigned as a director of Grace, effective prior to the Effective Time. In addition, effective prior to the Effective Time, each of Mr. Cambre and Ms. Fox became a director of GCP, on whose board of directors Ms. Henry has been serving since January 12, 2016. Effective upon the foregoing resignations, the size of Grace’s board of directors was reduced from 10 to 7 directors.
Appointment of Officers
Effective as of February 3, 2016, Hudson La Force, currently Grace’s Chief Financial Officer and Senior Vice President, assumed the additional role of Chief Operating Officer. A copy of the press release issued by Grace





on February 4, 2016 announcing Mr. La Force’s appointment is filed as Exhibit 99.1 to this Current Report and is incorporated by reference herein.
Adoption of Compensation and Benefit Plans
In connection with the Separation and Distribution, on February 3, 2016, Grace adopted, as of the Effective Time, the Severance Plan for Leadership Team Officers of W. R. Grace & Co. (the “Executive Severance Plan”), which provides that, if the employment of an executive officer is terminated without cause prior to a change in control, he or she will be entitled to cash severance equal to one times (two times, in the case of the Chief Executive Officer) the sum of his or her base salary and target bonus. The Executive Severance Plan also provides that, upon a termination without cause prior to a change in control, an executive officer will be entitled to a prorated annual bonus for the year of termination if he or she has completed at least three months of employment in the applicable year. In addition, in the case of the Chief Executive Officer only, the Chief Executive Officer would be entitled to the above-specified severance benefits upon resignation as a result of "constructive discharge" as defined by the Executive Severance Plan. Payments under the Executive Severance Plan are contingent upon the executive officer’s execution and non-revocation of a release of claims and non-compete and non-solicitation of employees covenants, in favor of Grace. The Executive Severance Plan replaces, and each executive officer has waived all rights under, all agreements or arrangements that provide for cash severance to an executive officer if the employment of such executive officer is terminated without cause prior to a change in control.
The foregoing description of the Executive Severance Plan does not purport to be complete and is qualified in its entirety by the full text of the Executive Severance Plan, which is filed as Exhibit 10.2 to this Current Report and incorporated by reference herein.
Item 9.01.
Financial Statements and Exhibits.

(d)    Exhibits
Exhibit No.
 
Description of Exhibit
10.1

 
Credit Agreement, dated as of February 3, 2016, by and among GCP Applied Technologies Inc., Grace Construction Products Limited, Grace NV, the lenders party thereto from time to time and Deutsche Bank AG New York Branch, as administrative agent.
10.2

 
Severance Plan for Leadership Team Officers of W. R. Grace & Co.
99.1

 
Press Release of W. R. Grace & Co., dated February 3, 2016.
99.2

 
Press Release of W. R. Grace & Co., dated February 4, 2016.

Forward-looking statements
This document and the exhibits hereto contain forward-looking statements, that is, information related to future, not past, events. Such statements generally include the words “believes,” “plans,” “intends,” “targets,” “will,” “expects,” “suggests,” “anticipates,” “outlook,” “continues” or similar expressions. Forward-looking statements include, without limitation, expected financial positions; results of operations; cash flows; financing plans; business strategy; operating plans; capital and other expenditures; competitive positions; growth opportunities for existing products; benefits from new technology and cost reduction initiatives, plans and objectives; and markets for securities. For these statements, Grace claims the protection of the safe harbor for forward-looking statements contained in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Like other businesses, Grace is subject to risks and uncertainties that could cause its actual results to differ materially from its projections or that could cause other forward-looking statements to prove incorrect. Factors that could cause actual results to materially differ from those contained in the forward-looking statements or that could cause other forward-looking statements to prove incorrect include, without limitation, risks related to: the cyclical and seasonal nature of the industries that Grace serves; the effectiveness of Grace’s research and development and new product introductions; the cost and availability of raw materials and energy; foreign operations, especially in emerging regions; changes in currency exchange rates; developments affecting Grace’s outstanding liquidity and indebtedness, including debt covenants and interest rate exposure; developments affecting Grace’s funded and unfunded pension obligations; acquisitions and divestitures of assets and gains and losses from dispositions; warranty and product liability claims; hazardous materials and costs of environmental compliance; the separation, such as the costs of the separation, Grace’s company’s ability to realize the anticipated benefits of the separation and distribution, and the value of Grace’s common stock following the separation; and





those additional factors set forth in Grace’s most recent Annual Report on Form 10-K, quarterly report on Form 10-Q and current reports on Form 8-K which have been filed with the Securities and Exchange Commission.





SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed by the undersigned, thereunto duly authorized. 
 
 
W. R. GRACE & CO.
 
 
(Registrant)
 
 
 
 
By
/s/ Hudson La Force III
 
 
 
 
 
Hudson La Force III
 
 
Senior Vice President and Chief Financial Officer
 
 
 
Dated: February 3, 2016
 
 





EXHIBIT INDEX
Exhibit No.
 
Description of Exhibit
10.1

 
Credit Agreement, dated as of February 3, 2016, by and among GCP Applied Technologies Inc., Grace Construction Products Limited, Grace NV, the lenders party thereto from time to time and Deutsche Bank AG New York Branch, as administrative agent.
10.2

 
Severance Plan for Leadership Team Officers of W. R. Grace & Co.
99.1

 
Press Release of W. R. Grace & Co., dated February 3, 2016.
99.2

 
Press Release of W. R. Grace & Co., dated February 4, 2016.



EXECUTION VERSION




 
CREDIT AGREEMENT
Dated as of February 3, 2016
among
GCP APPLIED TECHNOLOGIES INC.,
as the Borrower,
GRACE CONSTRUCTION PRODUCTS LIMITED and GRACE NV,
as the European Borrowers,

DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent,

THE OTHER LENDERS PARTY HERETO
_____________________________
DEUTSCHE BANK SECURITIES INC.,
GOLDMAN SACHS BANK USA,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners
_____________________________
GOLDMAN SACHS BANK USA,
as Syndication Agent
_____________________________
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
and
CITIGROUP GLOBAL MARKETS INC.
as Co-Documentation Agents






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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS
1
SECTION 1.01
Defined Terms    1
SECTION 1.02
Other Interpretive Provisions    88
SECTION 1.03
Accounting Terms    89
SECTION 1.04
Rounding    90
SECTION 1.05
References to Agreements and Laws    90
SECTION 1.06
Times of Day    90
SECTION 1.07
Timing of Payment or Performance    90
SECTION 1.08
Exchange Rates; Currency Equivalents Generally    90
SECTION 1.09
Pro Forma Calculations    92
SECTION 1.10
Letter of Credit Amounts    94
SECTION 1.11
Certifications    94
SECTION 1.12
Compliance with Article VII    94
ARTICLE 2. THE COMMITMENTS AND CREDIT EXTENSIONS
95
SECTION 2.01
The Loans    95
SECTION 2.02
Borrowings, Conversions and Continuations of Loans    96
SECTION 2.03
Letters of Credit    98
SECTION 2.04
Reserved    106
SECTION 2.05
Prepayments    107
SECTION 2.06
Termination or Reduction of Commitment    119
SECTION 2.07
Repayment of Loans    120
SECTION 2.08
Interest    121
SECTION 2.09
Fees    121
SECTION 2.10
Computation of Interest and Fees    124
SECTION 2.11
Evidence of Indebtedness    124
SECTION 2.12
Payments Generally    125
SECTION 2.13
Pro Rata Shares; Sharing of Payments; Availability of Funds    125
SECTION 2.14
Increase in Commitments    127
SECTION 2.15
Refinancing Amendments    132
SECTION 2.16
Extensions of Loans and Commitments.    134
SECTION 2.17
Cash Collateral.    136
SECTION 2.18
Defaulting Lenders.    137
SECTION 2.19
Acknowledgement and Consent to Bail-In of EEA Financial Institutions    139
SECTION 2.20
Appointment of Borrower as Representative of European Borrowers.    140

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ARTICLE 3. TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
140
SECTION 3.01
Taxes    140
SECTION 3.02
Making or Maintaining Eurocurrency Rate Loans    146
SECTION 3.03
Increased Cost; Capital Adequacy    148
SECTION 3.04
Funding Losses    150
SECTION 3.05
Matters Applicable to Requests for Compensation    150
SECTION 3.06
Replacement of Lenders Under Certain Circumstances    151
SECTION 3.07
Survival    152
ARTICLE 4. CONDITIONS PRECEDENT
153
SECTION 4.01
Conditions Precedent to Closing Date    153
SECTION 4.02
Conditions Precedent to All Credit Extensions    156
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
156
SECTION 5.01
Corporate Status.    156
SECTION 5.02
Corporate Power and Authority.    157
SECTION 5.03
No Violation.    157
SECTION 5.04
Governmental Authorization; Other Approvals.    158
SECTION 5.05
Financial Statements; No Material Adverse Effect; Solvency, etc.    158
SECTION 5.06
Litigation and Environmental Matters.    158
SECTION 5.07
Disclosure.    159
SECTION 5.08
Use of Proceeds, Margin Regulation.    159
SECTION 5.09
Taxes    159
SECTION 5.10
ERISA Compliance    159
SECTION 5.11
Ownership of Property    160
SECTION 5.12
Subsidiaries    160
SECTION 5.13
Compliance with Law    161
SECTION 5.14
Investment Company Act    161
SECTION 5.15
Environmental Matters.    161
SECTION 5.16
Labor Matters    162
SECTION 5.17
Intellectual Property.    162
SECTION 5.18
Collateral Documents.    163
SECTION 5.19
Patriot Act    163
SECTION 5.20
FCPA    163
SECTION 5.21
Sanctioned Persons    163
SECTION 5.22
Certain Matters Regarding the Belgian Borrower    164
SECTION 5.23
Central Administration: COMI    164
ARTICLE 6. AFFIRMATIVE COVENANTS
164
SECTION 6.01
Financial Statements    164
SECTION 6.02
Certificates; Other Information    165

ii
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SECTION 6.03
Notices    167
SECTION 6.04
Payment of Obligations    168
SECTION 6.05
Preservation of Existence, Etc.    168
SECTION 6.06
Maintenance of Properties    168
SECTION 6.07
Maintenance of Insurance    168
SECTION 6.08
Compliance with Laws    169
SECTION 6.09
Books and Records    169
SECTION 6.10
Inspection Rights    170
SECTION 6.11
Use of Proceeds    170
SECTION 6.12
Unrestricted Subsidiaries; Covenant to Guarantee Obligations and Give Security    170
SECTION 6.13
Maintenance of Ratings    175
SECTION 6.14
Further Assurances    175
SECTION 6.15
Post-Closing Covenants    176
SECTION 6.16
COMI    176
ARTICLE 7. NEGATIVE COVENANTS
176
SECTION 7.01
Liens    176
SECTION 7.02
Investments.    177
SECTION 7.03
Indebtedness    180
SECTION 7.04
Fundamental Changes    185
SECTION 7.05
Dispositions    186
SECTION 7.06
Restricted Payments    187
SECTION 7.07
Change in Nature of Business    190
SECTION 7.08
Transactions with Affiliates    191
SECTION 7.09
Burdensome Agreements    194
SECTION 7.10
Reserved.    196
SECTION 7.11
Amendments of Certain Documents    196
SECTION 7.12
Fiscal Year    196
SECTION 7.13
Reserved.    196
SECTION 7.14
Financial Covenants    196
ARTICLE 8. EVENTS OF DEFAULT AND REMEDIES
196
SECTION 8.01
Events of Default    196
SECTION 8.02
Remedies Upon Event of Default    200
SECTION 8.03
Application of Funds    201
SECTION 8.04
Rights not Exclusive    201
ARTICLE 9. ADMINISTRATIVE AGENT AND OTHER AGENTS
202
SECTION 9.01
Appointment of Agents.    202
SECTION 9.02
Powers and Duties    202
SECTION 9.03
General Immunity    202
SECTION 9.04
Agents Entitled to Act as Lender    204

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SECTION 9.05
Lenders’ Representations, Warranties and Acknowledgment    204
SECTION 9.06
Right to Indemnity    205
SECTION 9.07
Successor Administrative Agent and Collateral Agent.    205
SECTION 9.08
Collateral Documents and Guaranty    207
SECTION 9.09
Withholding Taxes    209
SECTION 9.10
Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim    210
SECTION 9.11
Secured Bank Product Provider    211
ARTICLE 10. MISCELLANEOUS
211
SECTION 10.01
Amendments, Etc.    211
SECTION 10.02
Notices and Other Communications; Facsimile Copies    215
SECTION 10.03
No Waiver; Cumulative Remedies; Enforcement    218
SECTION 10.04
Attorney Costs, Expenses and Taxes    218
SECTION 10.05
Indemnification by the Borrower.    219
SECTION 10.06
Marshalling; Payments Set Aside    222
SECTION 10.07
Successors and Assigns    222
SECTION 10.08
Confidentiality    228
SECTION 10.09
Setoff    229
SECTION 10.10
Interest Rate Limitation    230
SECTION 10.11
Counterparts    230
SECTION 10.12
Integration    230
SECTION 10.13
Survival of Representations and Warranties    230
SECTION 10.14
Severability    231
SECTION 10.15
Service of Process    231
SECTION 10.16
GOVERNING LAW    231
SECTION 10.17
WAIVER OF RIGHT TO TRIAL BY JURY    232
SECTION 10.18
No Advisory or Fiduciary Responsibility    233
SECTION 10.19
Electronic Execution of Assignments and Certain Other Documents    233
SECTION 10.20
Binding Effect    234
SECTION 10.21
PATRIOT Act Notice    234
SECTION 10.22
Affiliate Activities    234
SECTION 10.23
Obligations Several; Independent Nature of Lenders’ Rights    235
SECTION 10.24
Headings    235
SECTION 10.25
Parallel Debt    235



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SIGNATURES    S-1
SCHEDULES
I
Guarantors
1.01(b)
Existing Letters of Credit
2.01
Commitments
4.01(i)
Foreign Credit Facilities
5.11(b)
Material Real Properties
5.12
Subsidiaries
5.16
Labor Matters
6.12
Post-Closing Requirements
7.01(j)
Existing Liens
7.02(j)
Existing Investments
7.03(d)
Existing Indebtedness
7.08
Transactions with Affiliates
10.02
Principal Offices, Certain Addresses for Notices
EXHIBITS
Form of
A
Committed Loan Notice
B-1
Term Note
B-2
Revolving Note
C
Compliance Certificate
D
Assignment and Assumption
E
Guarantee Agreement
F-1
Security Agreement
F-2
UK Holdco Pledge Agreement
G
Administrative Questionnaire
H
Discount Range Prepayment Notice
I
Discount Range Prepayment Offer
J
Specified Discount Prepayment Notice
K
Specified Discount Prepayment Response
L
Solicited Discounted Prepayment Notice
M
Acceptance and Prepayment Notice
N
Solicited Discounted Prepayment Offer
O
Solvency Certificate
P
Prepayment Notice
Q
Joinder Agreement
R
Certificate re: Non-Bank Status

v
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of February 3, 2016 among GCP Applied Technologies Inc., a Delaware corporation (the “Borrower”), Grace Construction Products Limited, a limited liability company incorporated under the laws of England and Wales with company number 00614807 (the “UK Borrower”), and Grace NV, a public limited liability company (naamloze vennootschap/société anonyme) organized and existing under the laws of Belgium, having its registered seat at Industriepark 8, B-2220 Heist-Op-Den-Berg with company number 0403.768.141 RLE Antwerp (division Mechelen) (“Belgian Borrower” and together with the UK Borrower, the “European Borrowers”), each lender from time to time party hereto and Deutsche Bank AG New York Branch, as Administrative Agent.
PRELIMINARY STATEMENTS
The Borrower (or the European Borrowers, as applicable) will incur the Facilities in connection with the distribution by W. R. Grace & Co., a Delaware corporation (“Grace”), to the holders of Grace common Capital Stock on a pro rata basis, all of the outstanding shares of the common Capital Stock of the Borrower, which at the time of the distribution will hold the business, assets and liabilities associated with Grace Construction Products operating segment and the Darex Packaging Technologies business (the “Spin-Off”).
The applicable Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to so issue Letters of Credit, in each case, on the terms and subject to the conditions set forth in this Agreement. In consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto covenant and agree as follows:
Article 1.

DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01    Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
Acceptance Date” has the meaning specified in Section 2.05(a)(iv)(D)(2).
Acceptable Discount” has the meaning specified in Section 2.05(a)(iv)(D)(2).
Acceptable Prepayment Amount” has the meaning specified in Section 2.05(a)(iv)(D)(3).
Accepting Lender” has the meaning specified in Section 2.05(b)(vii).
Account(s)” means “accounts” as defined in the UCC, and includes without limitation a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered or (c) arising out of the use of a credit or charge card or information contained on or for use with the card. The term “Account” does not include (a) rights to payment evidenced by chattel paper or an instrument, (b) commercial tort claims, (c) deposit accounts, (d) investment property or (e) letter-of-credit rights or letters of credit.
Accounting Changes” has the meaning specified in Section 1.03(d).
Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such


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Acquired Entity or Business or Converted Restricted Subsidiary, as applicable, all as determined on a consolidated basis for such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable.
Acquired Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA.”
Acquired Indebtedness” means Indebtedness (1) of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary, (2) assumed in connection with the acquisition of assets from such Person, in each case whether or not Incurred by such Person in connection with such Person becoming a Restricted Subsidiary or such acquisition or (3) of a Person at the time such Person merges or amalgamates with or into or consolidates or otherwise combines with the Borrower or any Restricted Subsidiary. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets and, with respect to clause (3) of the preceding sentence, on the date of the relevant merger, consolidation, amalgamation or other combination.
Additional Commitments Effective Date” has the meaning specified in Section 2.14(b).
Additional Facility” means an Additional Term Facility, an Additional Revolving Facility, or the Additional Revolving Facility Commitments (and the Credit Extensions thereunder), as the context may require.
Additional Lenders” means the Additional Term Lenders and the Additional Revolving Lenders.
Additional Loans” means Additional Revolving Loans or Additional Term Loans, as the context may require.
Additional Notes” means any series of notes evidencing or consisting of Indebtedness that is, at the time of incurrence, secured by the Collateral on a pari passu basis or junior basis with the Loans, provided that (a) the maturity date of such Additional Notes shall be no earlier than the latest Maturity Date at the time incurred, (b) such Additional Notes shall not be secured by any Lien on any asset of any Loan Party that does not also secure the Loans, and shall not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, (c) the amortization requirements for such Additional Notes may differ from the existing Term Loans, so long as the then remaining Weighted Average Life to Maturity of such Additional Notes is no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans, (d) shall be subject to a customary intercreditor agreement with terms to be mutually agreed by the Administrative Agent, the Borrower and the trustee or holders of such Additional Notes, (e) the Borrower shall give the Administrative Agent at least three Business Days’ (or such shorter period as the Administrative Agent shall agree) prior written notice of the intent to incur such Additional Notes, and (f) on the date that such Additional Notes are Incurred, after giving Pro Forma Effect to any Incurrence of Indebtedness on such date, (1) the aggregate principal amount of such Additional Notes, taken together with all Additional Loans and Additional Term Commitments then outstanding, does not exceed the General Incremental Availability plus the Ratio Incremental Availability (in each case assuming for the purpose of this calculation that the cash proceeds of such Additional Notes, as applicable, are not treated as Cash on Hand for such purpose) and (2) no Event of Default exists or would exist after giving effect to such incurrence (or to the extent the proceeds of such Additional Notes are being used to finance a Permitted Acquisition or any other permitted Investment, no Event of Default exists or would exist at







the time of execution of the applicable definitive agreement, subject to customary SunGard limitations where agreed to by the institutions purchasing such Additional Notes).
Additional Revolving Borrowing” means a borrowing consisting of simultaneous Additional Revolving Loans of the same Class and Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Additional Revolving Lenders.
Additional Revolving Commitments” has the meaning specified in Section 2.14(a).
Additional Revolving Facility” has the meaning specified in Section 2.14(a).
Additional Revolving Facility Commitments” has the meaning specified in Section 2.14(a).
Additional Revolving Lenders” means the lenders providing the Additional Revolving Commitments or Additional Revolving Facility Commitments.
Additional Revolving Loans” means any loans made in respect of any Additional Revolving Commitments or Additional Revolving Facility Commitments that shall have been added pursuant to Section 2.14.
Additional Term A Loans” means Additional Term Loans that are term A loans.
Additional Term Borrowing” means a borrowing consisting of simultaneous Additional Term Loans of the same Class and Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Additional Term Lenders.
Additional Term Commitments” has the meaning specified in Section 2.14(a).
Additional Term Facility” means the Additional Term Commitments and the Additional Term Loans.
Additional Term Lenders” means the lenders providing the Additional Term Loans.
Additional Term Loans” means any loans made in respect of any Additional Term Commitments that shall have been added pursuant to Section 2.14.
Adjusted Eurocurrency Rate” means for any Interest Rate Determination Date with respect to an Interest Period with respect to a Eurocurrency Rate Borrowing, (I) in relation to a Loan denominated in Canadian Dollars, the CDOR Rate and (II) in all other cases, the rate per annum obtained by dividing (i) (a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate which appears on the Thomson Reuters Screen which displays the average ICE Benchmark Administration Limited interest settlement rate or, in the case of Euros, European Money Markets Institute interest settlement rate, or in each case the successor thereto (such page currently being (x) in relation to a Loan denominated in Dollars or any Alternative Currency (other than Euros or Canadian Dollars), the LIBOR01 page and (y) in relation to a Loan denominated in Euros, the EURIBOR01 page) for deposits (for delivery on the first day of such period) with a term equivalent to such period in the relevant currency, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, (b) in the event the rates referenced in the preceding clause (a) do not appear on such page or service or if such page or service shall cease to be available, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate on such other commercially available page or other service which displays an average ICE Benchmark Administration Limited interest settlement rate, or the case of Euros, European Money Markets Institute interest settlement rate, or in







each case, the successor thereto, for deposits (for delivery on the first day of such period) with a term equivalent to such period in the relevant currency, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum equal to the offered quotation rate to first class banks in the applicable interbank market by the Administrative Agent for deposits (for delivery on the first day of the relevant period) in such currency of amounts in same day funds comparable to the principal amount of the applicable Loan of the Administrative Agent, in its capacity as a Lender, for which the Adjusted Eurocurrency Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement. Notwithstanding the foregoing, with respect to any determination of the Adjusted Eurocurrency Rate (i) with respect to Term Loans, the Adjusted Eurocurrency Rate shall not be less than 0.75% per annum, (ii) with respect to a Eurocurrency Borrowing with an Interest Period of less than one month, the Adjusted Eurocurrency Rate shall be the rate that would otherwise apply for an Interest Period of one month and (iii) in the event that any reference rate referred to in clause (i) is less than 0%, such reference rate shall be deemed to be 0%.
Administrative Agent” means Deutsche Bank AG New York Branch in its capacity as administrative agent under any of the Loan Documents, or any permitted successor administrative agent.
Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify in writing to the Borrower, the Lenders and the L/C Issuers.
Administrative Questionnaire” means an Administrative Questionnaire substantially in the form of Exhibit G.
Affected Lender” has the meaning specified in Section 3.02(b).
Affected Loans” has the meaning specified in Section 3.02(b).
Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Affiliate Transaction” means any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Borrower involving aggregate value in excess of $20,000,000, unless:
(1) the terms of such Affiliate Transaction taken as a whole are not materially less favorable to the Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s length dealings with a Person who is not such an Affiliate; and
(2) in the event such Affiliate Transaction involves an aggregate value in excess of $40,000,000, the terms of such transaction have been approved by a majority of the members of the Board of Directors.
Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this definition if such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any.







Agent-Related Persons” means the Administrative Agent, the Collateral Agent and, in each case, the officers, directors, employees, agents and attorneys-in-fact of such Person.
Agents” means, collectively, the Administrative Agent, the Collateral Agent, the Syndication Agent and the Documentation Agents.
Agreement Currency” has the meaning specified in Section 1.08(h).
Aggregate Amounts Due” has the meaning specified in Section 2.13(d).
Aggregate Revolving Commitments” means the Revolving Commitments of all the Revolving Lenders. The amount of the Aggregate Revolving Commitments on the Closing Date is $250,000,000.
Agreement” means this Credit Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time.
Alternative Currency” means with respect to Revolving Loans and Letters of Credit, Euros, Canadian Dollars and Pounds Sterling.
Alternative Currency Equivalent” means, with respect to an amount denominated in any Alternative Currency, such amount, and with respect to an amount denominated in Dollars or another Alternative Currency, the equivalent in such Alternative Currency of such amount determined at the Exchange Rate on the applicable Valuation Date. In making the determination of the Alternative Currency Equivalent for purposes of determining the aggregate available Revolving Commitments on any Credit Date, the Administrative Agent shall use the Exchange Rate in effect at the date on which the Borrower requests the Credit Extension for such Credit Date pursuant to the provisions of this Agreement.
Anti-Corruption Laws” means all Laws, rules, and regulations of any jurisdiction applicable to the Loan Parties or their Restricted Subsidiaries from time to time concerning or relating to bribery or corruption.
Anti-Terrorism Laws” means any Laws relating to terrorism or money laundering, including Executive Order No. 13224, the PATRIOT Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by OFAC (as any of the foregoing Laws may from time to time be amended, renewed, extended, or replaced).
Applicable Discount” has the meaning specified in Section 2.05(a)(iv)(C)(2).
Applicable Law” means, as to any Person: (a) all Laws, statutes, rules, regulations, orders, codes, ordinances or other requirements having the force of law; and (b) all court orders, decrees, judgments, injunctions, notices, binding agreements and/or rulings, in each case of or by any Governmental Authority which has jurisdiction over such Person, or any property of such Person.
Applicable Rate” means a percentage per annum equal to:
(a)    with respect to Term Loans, (1) for Eurocurrency Rate Loans, the Adjusted Eurocurrency Rate plus 4.50% and (2) for the Base Rate Loans, the Base Rate plus 3.50%,
(b)    with respect to Revolving Loans, initially, (1) for Eurocurrency Rate Loans, the Adjusted Eurocurrency Rate plus 2.00% and (2) for Base Rate Loans, the Base Rate plus 1.00%, provided that, from and after delivery of the Compliance Certificate pursuant to Section 6.02(b) for the







period ended March 31, 2016, the Applicable Rate with respect to Revolving Loans shall be (1) for Eurocurrency Rate Loans, the Adjusted Eurocurrency Rate plus the applicable margin set forth below and (2) for the Base Rate Loans, the Base Rate plus the applicable margin set forth below, in each case, based on the Total Leverage Ratio set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):
Total Leverage Ratio
Margin for Eurodollar Rate Loans
Margin for Base Rate Loans
> 2.00:1.00
2.00%
1.00%
≤ 2.00:1.00 and > 1.50:1.00
1.75%
0.75%
≤ 1.50:1.00
1.50%
0.50%

(c)    with respect to Letter of Credit fees, the applicable margin then in effect with respect to the Adjusted Eurocurrency Rate for Revolving Loans,
(d)    with respect to the unused Revolving Commitments, 0.375%, and
(e)    with respect to any Additional Term Loans, Additional Revolving Loans in respect of an Additional Revolving Facility, any Extended Term Loans, any Extended Revolving Loans, Extended Revolving Commitments and Replacement Term Loans, such amounts as may be agreed to by the Borrower and the Additional Term Lenders, Additional Revolving Lenders, Extended Term Lenders or Extended Revolving Lenders as the case may be.
Any increase or decrease in the Applicable Rate set forth above resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b).
Applicable Reserve Requirement” means, at any time, for any Eurocurrency Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Adjusted Eurocurrency Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include Eurocurrency Rate Loans. A Eurocurrency Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurocurrency Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class and (b) with respect to the L/C Sublimit, the L/C Issuers and the Revolving Lenders.
Approved Currency” means Dollars and any Alternative Currency.







Approved Fund” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
Arrangers” means Deutsche Bank Securities Inc. and Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Citigroup Global Markets Inc., each in its capacity as a joint lead arranger and joint bookrunner for the Facilities.
Asset Disposition” means:
(a)    the voluntary sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Borrower or any of its Restricted Subsidiaries (in each case other than Capital Stock of the Borrower) (each referred to in this definition as a “disposition”); or
(b)    the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred Capital Stock or Disqualified Capital Stock of Restricted Subsidiaries issued in compliance with Section 7.03 or directors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether in a single transaction or a series of related transactions;
in each case, other than:
(1)    a disposition by the Borrower or a Restricted Subsidiary to the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, then (i) the transferee thereof must be a Loan Party, (ii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in accordance with Section 7.02 or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(2)    a disposition of cash, Cash Equivalents or Investment Grade Securities;
(3)    a disposition of inventory or other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business;
(4)    a disposition of obsolete, worn out, uneconomic, damaged or surplus property, equipment or other assets or property, equipment or other assets that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Borrower and its Restricted Subsidiaries whether now or hereafter owned or leased or acquired in connection with an acquisition or used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries (including by ceasing to enforce, allowing the lapse, abandonment or invalidation of or discontinuing the use or maintenance of or putting into the public domain any intellectual property that is, in the reasonable judgment of the Borrower or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, or in respect of which the Borrower or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
(5)    transactions permitted under Section 7.04 (other than under Section 7.04(d));







(6)    an issuance of Capital Stock by a Restricted Subsidiary to the Borrower or to another Restricted Subsidiary or as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors;
(7)    any dispositions of Capital Stock, properties or assets in a single transaction or series of related transactions with a fair market value (as determined in good faith by the Borrower) of less than $25,000,000;
(8)    any Restricted Payment that is permitted to be made, and is made, under Section 7.06 and the making of any Investment that is permitted to be made under Section 7.02;
(9)    dispositions in connection with Permitted Liens;
(10)    dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or consistent with past practice or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(11)    conveyances, sales, transfers, licenses or sub-licenses or other dispositions of intellectual property, software or other general intangibles and licenses, sub-licenses, leases or subleases of other property, in each case, in the ordinary course of business or consistent with past practice or pursuant to a research or development agreement in which the counterparty to such agreement receives a license in the intellectual property or software that results from such agreement;
(12)    the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(13)    foreclosure, condemnation or any similar action with respect to any property or other assets;
(14)    the sale or discount (with or without recourse, and on customary or commercially reasonable terms and for credit management purposes) of accounts receivable or notes receivable arising in the ordinary course of business or consistent with past practice, or the conversion or exchange of accounts receivable for notes receivable;
(15)    any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or an Immaterial Subsidiary;
(16)    any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(17)    (i) dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased, (ii) dispositions of property to the extent that the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased), and (iii) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business;







(18)    sales of accounts receivable or other assets or participations therein, in connection with any Receivables Facility, or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(19)    any financing transaction with respect to property constructed, acquired, replaced, repaired or improved (including any reconstruction, refurbishment, renovation and/or development of real property) by the Borrower or any Restricted Subsidiary after the Closing Date, including Sale and Leaseback Transactions and asset securitizations, permitted hereunder;
(20)    dispositions of Investments in joint ventures or similar entities to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties to such joint venture set forth in joint venture arrangements and similar binding arrangements;
(21)    any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual, tort, litigation or other claims of any kind;
(22)    the unwinding of any Cash Management Services or Hedging Obligations; and
(23)    dispositions of non-core assets.
In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Disposition and would also be an Investment permitted under Section 7.02 (excluding any transaction that generates Net Cash Proceeds), the Borrower, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Disposition and/or one or more of the types of Investments permitted under Section 7.02.
Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D.
Associate” means (i) any Person engaged in a Similar Business of which the Borrower or its Restricted Subsidiaries are the legal and beneficial owners of between 20% and 50% of all outstanding voting Capital Stock and (ii) any joint venture entered into by the Borrower or any Restricted Subsidiary.
Attorney Costs” means and includes all reasonable and documented fees, out-of-pocket expenses and out-of-pocket disbursements of any law firm or other external counsel.
Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Loan Prepayment pursuant to Section 2.05(a)(iv); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent).
Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
Available Amount” means, at any time (the “Reference Date”) and, in each case, without duplication, the sum of:
(a)    50% of Consolidated Net Income for the period (treated as one accounting period) from the first day of the first fiscal quarter after the Spin-Off Effective Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which internal







consolidated financial statements of the Borrower are available (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit);
(b)    100% of the aggregate cash, and the fair market value of property or assets or marketable securities, received by the Borrower from the issue or sale of its Capital Stock or as the result of a merger or consolidation with another Person subsequent to the Closing Date (other than in connection with the Spin-Off), or otherwise contributed to the equity (in each case other than through the issuance of Disqualified Capital Stock or Designated Preferred Stock) of the Borrower subsequent to the Closing Date (other than (x) cash or property or assets or marketable securities received from an issuance or sale of such Capital Stock to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or any Subsidiary of the Borrower for the benefit of its employees to the extent funded by the Borrower or any Restricted Subsidiary, (y) cash or property or assets or marketable securities to the extent that any Restricted Payment has been made from such proceeds in reliance on Section 7.06(f) and (z) Excluded Contributions);
(c)    100% of the aggregate cash, and the fair market value of property or assets or marketable securities, received by the Borrower or any Restricted Subsidiary from the issuance or sale (other than to the Borrower or a Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or any Subsidiary of the Borrower for the benefit of their employees to the extent funded by the Borrower or any Restricted Subsidiary) by the Borrower or any Restricted Subsidiary subsequent to the Closing Date of any Indebtedness, Disqualified Capital Stock or Designated Preferred Stock that has been converted into or exchanged for Capital Stock of the Borrower (other than Disqualified Capital Stock or Designated Preferred Stock) plus, without duplication, the amount of any cash, and the fair market value of property or assets or marketable securities, received by the Borrower or any Restricted Subsidiary upon such conversion or exchange;
(d)    100% of the aggregate amount received in cash and the fair market value of marketable securities or other property received by means of: (i) the sale or other disposition (other than to the Borrower or a Restricted Subsidiary) of Investments permitted under Section 7.02 made by the Borrower or its Restricted Subsidiaries and repurchases and redemptions of such permitted Investments from the Borrower or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Investments permitted under Section 7.02 by the Borrower or its Restricted Subsidiaries, in each case after the Closing Date; or (ii) the sale (other than to the Borrower or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than to the extent of the amount of the Investment that constituted an Investment permitted under Section 7.02 and will increase the amount available under the applicable clause of Section 7.02) or a dividend from an Unrestricted Subsidiary after the Closing Date;
(e)    in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Borrower or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary after the Closing Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the assets transferred) at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger or consolidation or transfer of assets (after taking into consideration any Indebtedness associated with the Unrestricted Subsidiary so designated or merged or consolidated or Indebtedness associated with the assets so transferred), other than to the extent of the amount of







the Investment that constituted an Investment permitted under Section 7.02 or was made under Section 7.06(q)(ii); and
(f)    an amount equal to Retained Declined Proceeds;
minus, the aggregate amount of any Investments made pursuant to Section 7.02(dd)(ii), and any Restricted Payment made pursuant to Section 7.06(q)(ii) during the period following the Closing Date and ending on the Reference Date;
provided, however, that the calculation under the immediately preceding clauses (a) through (f) shall not include any amounts attributable to, or arising in connection with, the Spin-off and, provided further, however that if at the time such Available Amount is calculated the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis after giving effect to any Investment, Restricted Payment or prepayment of Indebtedness for which the Available Amount is being calculated) is less than 2.00:1.00, the amounts described in clause (a) shall not be included in calculating the Available Amount for purposes of any Investment pursuant to Section 7.02(dd)(ii) or any, Restricted Payment pursuant to Section 7.06(q)(ii).
Available Liquidity” means, as of any date of determination, the sum of (i) the aggregate amount of undrawn Revolving Commitments that are in effect as of such date, (b) the amount of undrawn commitments in respect of Additional Term Loans that are in effect on such date and (c) the aggregate amount of Cash on Hand.
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 Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
Bank Product” means any of the following products, services or facilities provided to the Borrower or any Restricted Subsidiary: (a) products under Swap Contracts with a Secured Bank Product Provider; or (b) Cash Management Services or other similar banking products or services as may be requested by the Borrower or any Restricted Subsidiary, other than letters of credit, and provided by a Secured Bank Product Provider.
Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (iii) the sum of (a) the Adjusted Eurocurrency Rate that would be payable on such day for a Eurocurrency Rate Loan with a one-month interest period (which, in respect of Term Loans only, shall in no event be less than 0.75% per annum) plus (b) 1.00%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
Base Rate Loan” means a Loan that bears interest based on the Base Rate.
Belgian Borrower” has the meaning specified in the preamble hereto.







Benefit Plan” means any employee pension benefit plan within the meaning of Section 3(2) of ERISA, in respect of which the Borrower or any ERISA Affiliate is an “employer” as defined in Section 3(5) of ERISA.
Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
Board of Directors” means (i) with respect to the Borrower or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (ii) with respect to any partnership, the board of directors or other governing body of the general partner, as applicable, of the partnership or any duly authorized committee thereof; (iii) with respect to a limited liability company, the managing member or members or any duly authorized controlling committee thereof; and (iv) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval).
Borrower” has the meaning specified in the preamble hereto.
Borrower DTTP Filing” shall mean an HM Revenue & Customs' Form DTTP2 duly completed and filed by a UK Tax Borrower, which:
(a)    where it relates to a Lender that is a Lender on the day this Agreement is entered into, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name in Schedule 2.01, and
(i)    where the relevant UK Tax Borrower is the UK Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or
(ii)    where the relevant UK Tax Borrower is not the UK Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that UK Tax Borrower becomes a UK Tax Borrower; or
(b)    where it relates to a Lender that is not a party to this Agreement on the date on which this Agreement is entered contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Assignment and Assumption, as applicable, and
(i)    where the relevant UK Tax Borrower is a UK Tax Borrower as at the assignment date or the date on which any increase or establishment in Commitments takes effect is filed with HM Revenue & Customs within 30 days of that date; or
(ii)    where the relevant UK Tax Borrower is not a UK Tax Borrower as at the relevant assignment date or the date on which any increase or establishment in Commitments takes effect is filed with HM Revenue & Customs within 30 days of the date on which that UK Tax Borrower becomes a UK Tax Borrower.
Borrower Materials” has the meaning specified in Section 6.02.
Borrower Offer of Specified Discount Prepayment” means the offer by the Borrower to make a voluntary prepayment of Loans at a specified discount to par pursuant to Section 2.05(a)(iv)(B).







Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by the Borrower of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of discounts to par pursuant to Section 2.05(a)(iv)(C).
Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by the Borrower of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to par pursuant to Section 2.05(a)(iv)(D).
Borrowing” means a Revolving Borrowing, a Term Borrowing, Extended Term Borrowing, Extended Revolving Borrowing, Replacement Term Borrowing, Additional Revolving Borrowing or Additional Term Borrowing, as the context may require.
Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, when used in relation to the Borrower, New York and, if such day relates to any Eurocurrency Rate Loan in a currency other than Euros, means any such day that is also a London Banking Day and, in the case of a Eurocurrency Rate Loan in Euros, means any such day that is also a TARGET Day.
Business Successor” means (i) any former Subsidiary of the Borrower and (ii) any Person that, after the Closing Date, has acquired, merged or consolidated with a Subsidiary of the Borrower (that results in such Subsidiary ceasing to be a Subsidiary of the Borrower), or acquired (in one transaction or a series of transactions) all or substantially all of the property and assets or business of a Subsidiary or assets constituting a business unit, line of business or division of a Subsidiary of the Borrower in the case of each of clauses (i) and (ii), as a result of a transaction not prohibited hereunder.
Canadian Dollars” means the lawful money of Canada.
Capital Expenditures” means, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities and including Capitalized Research and Development Costs and Capitalized Software Expenditures) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment or similar items which should be capitalized, reflected in the consolidated balance sheet of the Borrower and its Restricted Subsidiaries and (b) Capital Lease Obligations incurred by the Borrower and its Restricted Subsidiaries during such period.
Capital Lease Obligations” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.
Capital Stock” means any and all shares of, rights to purchase, warrants, options or depositary receipts for, or other equivalents of, or partnership or other interests in (however designated), equity of any Person, including any Preferred Capital Stock, but excluding any debt securities convertible into, or exchangeable for, such equity.
Capitalized Leases” means all leases that are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.
Capitalized Research and Development Costs” means research and development costs that are required to be, in accordance with GAAP, capitalized.  







Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.  
Captive Insurance Subsidiaries” means, collectively or individually as of any date of determination, those regulated Subsidiaries of the Borrower primarily engaged in the business of providing insurance and insurance-related services to the Borrower and its other Subsidiaries.
Cash Collateral Account” means a deposit account at a commercial bank selected by the Administrative Agent in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.
Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, any L/C Issuer and the Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect thereof, cash or deposit account balances denominated in the Approved Currency in which the applicable Letter of Credit was issued, or, if the applicable L/C Issuer benefitting from such collateral agrees in its reasonable discretion, other credit support (including by backstopping with other letters of credit), in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent, (b) the applicable L/C Issuer and (c) the Borrower (which documents are hereby consented to by the Lenders). “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:  
(1)    (a) Dollars, Canadian dollars, Swiss Francs, Euro or any national currency of any member state of the European Union; or (b) any other foreign currency held by the Borrower and the Restricted Subsidiaries in the ordinary course of business;
(2)    securities issued or directly and fully Guaranteed or insured by the United States, Canadian or Swiss governments, a member state of the European Union or, in each case, or any agency or instrumentality thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), having maturities of not more than two years from the date of acquisition;
(3)    certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than one year from the date of acquisition thereof issued by any lender or by any bank or trust company (a) whose commercial paper is rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (b) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in excess of $100,000,000;
(4)    repurchase obligations for underlying securities of the types described in clauses (2), (3) and (7) entered into with any bank meeting the qualifications specified in clause (3) above;
(5)    securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any Person referenced in clause (3) above;







(6)    commercial paper and variable or fixed rate notes issued by a bank meeting the qualifications specified in clause (3) above (or by the parent company thereof) maturing within one year after the date of creation thereof or any commercial paper and variable or fixed rate note issued by, or guaranteed by a corporation rated at least (A) “A-1” or higher by S&P or “P-1” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Borrower) maturing within two years after the date of creation thereof or (B) “A-2” or higher by S&P or “P-2” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Borrower) maturing within one year after the date of creation thereof, or, in each case, if no rating is available in respect of the commercial paper or fixed rate notes, the issuer of which has an equivalent rating in respect of its long-term debt;
(7)    marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either S&P or Moody’s, respectively (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Borrower), and in each case maturing within 24 months after the date of creation or acquisition thereof;
(8)    readily marketable direct obligations issued by any state, province, commonwealth or territory of the United States of America, Canada, Switzerland, any member state of the European Union or any political subdivision, taxing authority or public instrumentality thereof, in each case, having one of the two highest ratings categories obtainable from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Borrower) with maturities of not more than two years from the date of creation or acquisition;
(9)    readily marketable direct obligations issued by any foreign government or any political subdivision, taxing authority or public instrumentality thereof, in each case, having one of the two highest ratings categories obtainable by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Borrower) with maturities of not more than two years from the date of acquisition;
(10)    Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated within the three highest ratings categories by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Borrower);
(11)    with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers acceptance of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;







(12)    Indebtedness or Preferred Capital Stock issued by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Borrower) with maturities of 24 months or less from the date of acquisition;
(13)    bills of exchange issued in the United States, Canada, a member state of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
(14)    investments in money market funds access to which is provided as part of “sweep” accounts maintained with any bank meeting the qualifications specified in clause (3) above;
(15)    investments in industrial development revenue bonds that (i) “re-set” interest rates not less frequently than quarterly, (ii) are entitled to the benefit of a remarketing arrangement with an established broker dealer and (iii) are supported by a direct pay letter of credit covering principal and accrued interest that is issued by any bank meeting the qualifications specified in clause (3) above;
(16)    investments in pooled funds or investment accounts consisting of investments in the nature described in the foregoing clause (15);
(17)    Cash Equivalents or instruments similar to those referred to in clauses (1) through (16) above denominated in Dollars or any Alternative Currency;
(18)    interests in any investment company, money market, enhanced high yield fund or other investment fund which invests 90% or more of its assets in instruments of the types specified in clauses (1) through (17) above; and
(19)    for purposes of clause (2) of the definition of “Asset Disposition,” any marketable securities portfolio owned by the Borrower and its Subsidiaries on the Closing Date.
In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States of America, Cash Equivalents shall also include (i) investments of the type and maturity described in clauses (1) through (9) and clauses (11) through (14) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (ii) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (14) and in this paragraph. Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (1) above, provided that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event within 10 Business Days following the receipt of such amounts. For the avoidance of doubt, any items identified as Cash Equivalents under this definition (other than clause (16) above) will be deemed to be Cash Equivalents for all purposes under this Agreement regardless of the treatment of such items under GAAP.
Cash Management Obligations” means obligations owed by the Borrower or any Restricted Subsidiary to a Secured Bank Product Provider in respect of any overdraft and liabilities arising from treasury, depository and Cash Management Services or similar services designated by the Borrower as constituting Cash Management Obligations.







Cash Management Services” means any one or more of the following types of services or facilities provided to the Borrower or any Restricted Subsidiary by any Person who on the date of the agreement giving rise thereto is entered into is a Credit Party or any Secured Bank Product Provider: (a) ACH transactions; (b) cash management services, including, without limitation, controlled disbursement services, treasury, depository, overdraft, bank acceptance draft issuance and commercial acceptance draft discounting, sight draft and electronic funds transfer services; (c) foreign exchange facilities; (d) credit card processing services; (e) purchase cards; and (f) credit or debit cards.
Cash on Hand” means, on any date of determination, the sum of the amount of cash and Cash Equivalents of the Borrower and each Restricted Subsidiary, as set forth on the balance sheet of the Borrower and its Consolidated Subsidiaries (it being understood that such amount shall exclude in any event any cash or Cash Equivalents identified on such balance sheet as “restricted” (including cash or Cash Equivalents subject to a control agreement in favor of any Person other than the Administrative Agent, but excluding cash or Cash Equivalents restricted in favor of the Secured Parties)).
Casualty Event” means any event that gives rise to the receipt by the Borrower of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property (including any improvements thereon).
CDOR Rate” means, with respect to each day during an Interest Period pertaining to a Loan denominated in Canadian Dollars, the interest rate per annum which is the rate based on the average rate applicable to Canadian Dollar bankers’ acceptances, for a term comparable to such Interest Period, appearing on the “Reuters Screen CDOR Page” (as defined in the International Swaps and Derivatives Association, Inc. 1991 definitions, as modified and amended from time to time) at approximately 11:00 a.m. (New York City time) on the first day of such Interest Period, or if such date is not a Business Day, then on the immediately preceding Business Day; provided, that if such rate does not appear on the Reuters Screen CDOR Page on such date as contemplated, then the CDOR Rate for such Interest Period shall be the rate for a term comparable to such Interest Period applicable to Canadian Dollar bankers’ acceptance quoted by a bank listed in Schedule 1 of the Bank Act (Canada) and selected by the Administrative Agent.
CFC” means a “controlled foreign corporation” (within the meaning of Section 957 of the Code).
Change of Control means (i) any “person” or “group” of related persons (as such terms are used in Section 13(d) of the Exchange Act as in effect on the Closing Date) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), directly or indirectly, of more than 40% of the total voting power of the voting Capital Stock of the Borrower (other than, prior to the Spin-Off, by Grace and its Subsidiaries) (provided, however, that notwithstanding the foregoing, a transaction or series of transactions will not be deemed to involve a Change of Control if (x) the Borrower becomes a direct or indirect wholly-owned subsidiary of a holding company and (y) the direct or indirect beneficial owners of the voting Capital Stock of such holding company immediately following such transaction or transactions are substantially the same as the beneficial owners of the voting Capital Stock of the Borrower immediately prior to such transaction or transactions); or (ii) the sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation, consolidation or other business combination transaction), in one or a series of related transactions, of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole to a Person, other than the Borrower or any of its Restricted Subsidiaries in accordance with Section 7.04.







Class” (a) when used with respect to Lenders, refers to whether such Lenders are Revolving Lenders, Term Lenders, Additional Term Lenders of a Series, Additional Revolving Lenders of a Series or Extending Lenders of a Series, (b) when used with respect to Commitments, refers to whether such Commitments are Term Commitments, Revolving Commitments, Additional Term Commitments of a Series, Additional Revolving Facility Commitments of a Series or Extended Revolving Commitments of a Series and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Term Loans, Revolving Loans, Additional Term Loans of a Series, Additional Revolving Loans of a Series, Extended Term Loans of a Series, Extended Revolving Loans of a Series or Replacement Term Loans of a Series.
Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01, which date is February 3, 2016.
Code” means the U.S. Internal Revenue Code of 1986, as amended (unless as specifically provided otherwise).
Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms hereof or under the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties; provided, that in no event shall “Collateral” include any equity interests or assets of any Excluded Subsidiary (other than equity interests in any “first tier” Excluded Foreign Subsidiary to the extent required to be pledged pursuant to Section 6.12).
Collateral Agent” means Deutsche Bank AG New York Branch, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent hereunder.
Collateral Documents” means, collectively, the Security Agreement, the UK Holdco Pledge Agreement, each Intellectual Property Security Agreement, the Mortgages, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties as security for the Secured Obligations, including collateral assignments, Security Agreement Supplements and other similar agreements delivered to the Administrative Agent and the Lenders pursuant to Section 6.12.
Commitment” means a Term Commitment, a Revolving Commitment, an Additional Term Commitment, an Additional Revolving Commitment, an Additional Revolving Facility Commitment or an Extended Revolving Commitment, as the context may require.
Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Borrowing, (c) a conversion of Loans from one Type to the other or (d) a continuation of Eurocurrency Rate Loans pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
Compliance Certificate” means a certificate substantially in the form of Exhibit C or such other form approved by the Administrative Agent and the Borrower.
Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.
Consolidated Cash Interest Expense” means, with respect to any Person for any period, without duplication, (a) Consolidated cash interest expense in respect of indebtedness for borrowed money of







such Person and its Restricted Subsidiaries for such period on a Consolidated basis (excluding amortization of original issue discount or premium resulting from the Issuance of Indebtedness at less than par, amortization of deferred financing costs, costs associated with obtaining or terminating Swap Contracts and fees and expenses in connection with any amendment or waiver of Indebtedness), minus (b) interest income for such period, all determined in accordance with GAAP.
Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including amortization or write-off of (i) intangibles and non-cash organization costs, (ii) deferred financing fees or costs and (iii) capitalized expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities, of such Person and its Restricted Subsidiaries for such period on a Consolidated basis and otherwise determined in accordance with GAAP and any write down of assets or asset value carried on the balance sheet.
Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(1)    increased (without duplication) by:
(a)    any (x) Transaction Expenses and (y) any fees, costs, expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to any actual, proposed or contemplated GCP Equity Offering (including any expense relating to enhanced accounting functions or other transactions costs associated with becoming a public company), Investment permitted under Section 7.02, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be Incurred hereunder (including a refinancing thereof) (in each case, whether or not successful), including (i) such fees, expenses or charges related to this Agreement, the Senior Notes Indenture, the Senior Notes, any other credit facilities and any Receivables Fees, and (ii) any amendment, waiver or other modification of this Agreement, the Senior Notes Indenture, the Senior Notes, Receivables Facilities, any other credit facilities, any Receivables Fees, any other Indebtedness permitted to be Incurred hereunder or any GCP Equity Offering, in each case, whether or not consummated, to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
(b)    provision for taxes based on income, profits, revenue or capital, including, without limitation, federal, state, provincial, territorial, local, foreign, unitary, excise, property, franchise and similar taxes and foreign withholding and similar taxes of such Person paid or accrued during such period, including any penalties and interest relating to any tax examinations (including, without limitation, any additions to such taxes, and any penalties and interest with respect thereto), deducted (and not added back) in computing Consolidated Net Income; plus
(c)    any other non-cash charges, write-downs, expenses, losses or items reducing Consolidated Net Income for such period including any impairment charges or the impact of purchase accounting (provided that if any such non-cash charge, write-down or item to the extent it represents an accrual or reserve for a cash expenditure for a future period then the cash payment in such future period shall be subtracted from Consolidated EBITDA when paid) or other items classified by the Borrower as special items; plus
(d)    (i) the amount of any restructuring charge, reserve, integration cost or other business optimization expense or cost (including charges directly related to the implementation of cost-savings initiatives) that is deducted (and not added back) in such period in computing Consolidated Net Income,







including any one-time costs incurred in connection with acquisitions or divestitures after the Closing Date, including, without limitation, those related to any severance, retention, signing bonuses, relocation, recruiting and other employee related costs, future lease commitments and costs related to the opening and closure and/or consolidation of facilities and to existing lines of business and (ii) fees, costs and expenses associated with acquisition related litigation and settlements thereof; plus
(e)    any net loss included in the Consolidated Net Income attributable to non-controlling interests pursuant to the application of Accounting Standards Codification Topic 810-10-45 (“Topic 810”); plus
(f)    the amount of board of director fees, management, monitoring, advisory, consulting, refinancing, subsequent transaction, advisory and exit fees (including termination fees) and related indemnities and expenses paid or accrued in such period to any member of the Board of Directors of the Borrower to the extent permitted under Section 7.08; plus
(g)    net realized losses from Hedging Obligations or embedded derivatives that require similar accounting treatment and the application of Accounting Standard Codification Topic 815 (“Topic 815”) and related pronouncements; plus
(h)    cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (2) below for any previous period and not added back; plus
(i)    any costs or expense incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of an Equity Issuance (other than Disqualified Capital Stock) of the Borrower solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (1)(c) of the definition of Restricted Payments; plus
(j)    any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of the initial application of Accounting Standards Codification Topic 715, and any other items of a similar nature; plus
(k)    the amount of loss or discount on sale of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility; plus
(l)    earn-out and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof and purchase price adjustments, in each case in connection with acquisitions or an Investment; plus
(m)    pro forma adjustments in respect of cost savings, operating expense reductions and cost synergies relating to any Specified Transaction or the implementation of an operational initiative or operational change, in each case, projected by the Borrower in good faith to result from actions taken or expected to be taken (in the good faith determination of the Borrower) within eighteen (18) months after the date any such Specified Transaction is consummated or such operational initiative or change







is implemented and (2) the amount of “run-rate” cost savings, synergies and operating efficiencies projected by the Borrower in good faith to be realized (or for which a plan for realization shall have been established) in connection with any Specified Transaction or the implementation of an operational initiative or operational change, in each case, within eighteen (18) months after the date any such Specified Transaction is consummated or such operational initiative or change is implemented; provided that, in the case of each of clause (1) and (2), (x) a Responsible Officer of the Borrower shall have certified to the Administrative Agent that such cost savings or synergies are reasonably identifiable, reasonably attributable to the actions specified and reasonably anticipated to result from such actions, (y) such determinations shall be on a Pro Forma Basis as though such cost savings, synergies or operating efficiencies had been realized on the first day of such period, net of the amount of actual benefits realized prior to or during such period from such actions and (z) the aggregate amount added back pursuant to this clause (m) for any four fiscal quarter period shall not exceed 20.0% of Consolidated EBITDA (calculated on a Pro Forma Basis after giving effect to this clause (m)) for such period; plus
(n)    Fixed Charges of such Person for such period (including (x) net losses on any Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate, currency or commodities risk, (y) bank fees and (z) costs of surety bonds in connection with financing activities, plus amounts excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (t) through (z) in clause (1) thereof), to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
(o)    Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
(p)    the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly owned Subsidiary; plus
(q)    realized foreign exchange losses resulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance sheet of the Borrower and its Restricted Subsidiaries; plus
(r)    the amount of expenses relating to payments made to option holders of the Borrower or any Parent Entity in connection with, or as a result of, any distribution being made to equityholders of such Person or its Parent Entities, which payments are being made to compensate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted hereunder; plus
(s)    losses, expenses or charges (including all fees and expenses or charges related thereto) (i) from abandoned, closed, disposed or discontinued operations and any losses on disposal of abandoned, closed or discontinued operations and (ii) attributable to business dispositions or asset dispositions (other than in the ordinary course of business) as determined in good faith; plus
(t)    Public Company Costs; plus
(u)    cost related to the implementation of operational and reporting systems and technology initiatives; plus
(v)    [reserved]; plus
(w)    the amount of loss on sale of assets in connection with a Receivables Facility; plus







(x)    to the extent not already included in Consolidated Net Income, proceeds of business interruption insurance (to the extent actually received and net of expenses incurred to obtain such proceeds, unless otherwise deducted in determining Consolidated Net Income); and
(2)    decreased (without duplication) by:
(a)    non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period; plus
(b)    any net income included in Consolidated Net Income attributable to non-controlling interests pursuant to the application of Topic 810.
There shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by the Borrower or any Restricted Subsidiary during such period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) to the extent not subsequently sold, transferred or otherwise disposed of by the Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring during such period but prior to such acquisition). For purposes of determining the Total Secured Leverage Ratio, Fixed Charge Coverage Ratio, Interest Coverage Ratio, Total Leverage Ratio and First Lien Leverage Ratio, there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a “Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring during such period but prior to such sale, transfer or disposition). Notwithstanding the forgoing, but subject to any adjustments set forth above with respect to any transactions occurring after the Closing Date, Consolidated EBITDA shall be $40,500,000 for the fiscal quarter ended March 31, 2015, $66,800,000 for the fiscal quarter ended June 30, 2015, $66,700,000 for the fiscal quarter ended September 30, 2015 and $57,000,000 for the fiscal quarter ended December 31, 2015.
Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(1)    Consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount or premium resulting from the issuance of Indebtedness at less than par (other than the Loans), (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of any Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capital Lease Obligations, and (e) net







payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (s)  Receivables Fees, (t) penalties and interest relating to taxes, (u) any additional cash interest owing pursuant to any registration rights agreement, (v) accretion or accrual of discounted liabilities other than Indebtedness, (w) any expense resulting from the discounting of any Indebtedness in connection with the application of purchase accounting in connection with any acquisition, (x) amortization or write-off of deferred financing fees, debt issuance costs, debt discount or premium, terminated hedging obligations and other commissions, financing fees and expenses and original issue discount with respect to the Loans and, adjusted, to the extent included, to exclude any refunds or similar credits received in connection with the purchasing or procurement of goods or services under any purchasing card or similar program, (y) any expensing of bridge, commitment and other financing fees and (z) interest with respect to Indebtedness of any parent of such Person appearing upon the balance sheet of such Person solely by reason of push-down accounting under GAAP); plus
(2)    Consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(3)    interest income for such period.
For purposes of this definition, interest (i) on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP and (ii) shall be calculated in the reporting currency of such Person at the spot rate of exchange pursuant to GAAP on the date of determination as further increased or decreased by the fair value of foreign currency Swap Contracts or other derivative instruments (or portions thereof) entered into for the purpose of hedging currency risk related to the interest rate of any Indebtedness on such date of determination, regardless of whether such Swap Contracts or other instruments are recorded under hedge accounting principles in accordance with GAAP.
Consolidated Joint Venture” of Borrower means a corporation, partnership, limited liability company or other business entity selected by Borrower in its discretion (x) of which 50% or less of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, directly, or indirectly through one or more intermediaries, or both, by Borrower, and (y) that is consolidated with Borrower and its Subsidiaries in accordance with GAAP.
Consolidated Net Income” means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis on the basis of GAAP before any reduction in respect of Preferred Capital Stock dividends and including the net income (loss) of Consolidated Joint Ventures in an amount not to exceed $20,000,000; provided, however, that there will not be included in such Consolidated Net Income, without duplication:
(1)    any extraordinary, exceptional, unusual or nonrecurring gain, loss, charge or expense (including Transaction Expenses) or any charges, expenses or reserves in respect of any restructuring, redundancy or severance expense or relocation costs, integration and facilities’ opening costs and other business optimization expenses and operating improvements (including related to new product introductions), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions after the Closing Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, signing costs, retention or completion bonuses, transition costs, costs related







to closure/consolidation of facilities, internal costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities), contract terminations and professional and consulting fees incurred with any of the foregoing;
(2)    the cumulative effect of a change in accounting principles, including any impact resulting from an election by the Borrower to apply IFRS at any time following the Closing Date;
(3)    any costs associated with the Transactions, including any Transaction Expenses and any other charges, fees, costs or expenses associated with becoming a separate operating company;
(4)    any fees and expenses (including any transaction or retention bonus or similar payment) incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, asset disposition, issuance or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful (including, for avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with Financial Accounting Standards Codification No. 805 and gains or losses associated with Financial Accounting Standards Codification No. 460);
(5)    all deferred financing costs written off and premiums paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any write-off or forgiveness of Indebtedness;
(6)    accruals and reserves that are established or adjusted (including any adjustment of estimated payouts on existing earn-outs) that are so required to be established as a result of the Transactions in accordance with GAAP, or changes as a result of adoption or modification of accounting policies;
(7)    any (i) non-cash compensation charge or expense arising from any grant of stock, stock options or other equity based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions or on the re-valuation of any benefit plan obligation and (ii) income (loss) attributable to deferred compensation plans or trusts;
(8)    any net income (loss) of any Person if such Person is not a Restricted Subsidiary (including any net income (loss) from investments recorded in such Person under the equity method of accounting) (other than up to $20,000,000 of net income (loss) of Consolidated Joint Ventures), except that the Borrower’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that (as reasonably determined by a Responsible Officer of the Borrower) could have been distributed by such Person during such period to the Borrower or a Restricted Subsidiary as a dividend or other distribution or return on investment (subject, in the case of a dividend or other distribution or return on investment to a Restricted Subsidiary, to the limitations contained in clause (9) below);
(9)    solely for the purpose of determining the Available Amount, any net income (loss) of any Restricted Subsidiary (other than the Borrower and the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions







by such Restricted Subsidiary, directly or indirectly, to the Borrower or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its shareholders (other than (a) restrictions that have been waived or otherwise released, (b) restrictions pursuant to this Agreement, the Senior Notes or the Senior Notes Indenture and (c) restrictions specified in Section 7.09(m), except that the Borrower’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such Restricted Subsidiary during such period to the Borrower or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause);
(10)    any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized upon the sale or other disposition of any asset (including pursuant to any Sale and Leaseback Transaction) or disposed or discontinued operations of the Borrower or any Restricted Subsidiaries which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by a Responsible Officer or the Board of Directors of the Borrower);
(11)    any unrealized gains or losses in respect of any Hedging Obligations or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of any Hedging Obligations;
(12)    any unrealized foreign currency translation increases or decreases or transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person, including those related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency exchange risk) or other obligations of the Borrower or any Restricted Subsidiary owing to the Borrower or any Restricted Subsidiary and any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated in foreign currencies;
(13)    any unrealized or realized gain or loss due solely to fluctuations in currency values and the related tax effects, determined in accordance with GAAP;
(14)    any purchase accounting effects (including in relation to the Spin-Off) including, but not limited to, adjustments to inventory, property and equipment, software and other intangible assets and deferred revenue in component amounts required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries), as a result of any consummated acquisition, or the amortization or write-off of any amounts thereof (including any write-off of in process research and development);
(15)    any goodwill or other intangible asset impairment charge, write-off or write-down and the amortization of intangibles arising pursuant to GAAP;
(16)    any after-tax effect of income (loss) from the early extinguishment or cancellation of Indebtedness or any Hedging Obligations or other derivative instruments;







(17)    any net unrealized gains and losses resulting from Hedging Obligations or embedded derivatives that require similar accounting treatment and the application of Topic 815 and related pronouncements or mark to market movement of other financial instruments pursuant to Accounting Standards Codification Topic No. 825 and related pronouncements;
(18)    any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures and any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowances related to such item;
(19)    any non-cash items in respect of (x) pension and other post retirement obligations, (y) environmental obligations and (z) litigation or other disputes in respect of events and exposures will be excluded from Consolidated Net Income; and
(20)    any cash payments in respect of (x) pension and other post retirement obligations, (y) environmental obligations and (z) litigation or other disputes will be deducted from Consolidated Net Income (but only to the extent not already reducing Consolidated Net Income in accordance with GAAP) and in each case of clauses (x) through (z), excluding any payments in respect of charges taken on or prior to the Closing Date.
In addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (i) any expenses and charges that are reimbursed by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed and only to the extent that such amount is (A) not denied by the applicable payor in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days) and (ii) to the extent covered by insurance (including business interruption insurance) and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption.
Consolidated Total Debt” means, as of any date of determination, (a) the aggregate principal amount of Indebtedness for borrowed money (excluding Indebtedness with respect to Cash Management Services and intercompany Indebtedness among the Borrower and its Restricted Subsidiaries), plus (without duplication) (b) the aggregate principal amount of Capital Lease Obligations, Purchase Money Obligations and unreimbursed drawings under letters of credit of the Borrower and its Restricted Subsidiaries outstanding on such date, minus (c) the aggregate amount of cash and Cash Equivalents included in the consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the end of the most recent fiscal period for which internal financial statements of the Borrower are available (provided that the cash proceeds of any proposed Incurrence of Indebtedness shall not be included in this clause (c) for purposes of calculating the First Lien Leverage Ratio, Total Leverage Ratio or Total Secured Leverage Ratio, as applicable). For the avoidance of doubt, “Consolidated Total Debt” shall exclude Indebtedness in respect of any Receivables Facility. For purposes of calculating the First Lien Leverage Ratio, Total Leverage Ratio or the Total Secured Leverage Ratio, Consolidated Total Debt shall be calculated in the reporting currency of the Borrower at the spot rate of exchange pursuant to







GAAP on the date of determination as further increased or decreased by the fair value of foreign currency Swap Contracts or other derivative instruments or portions thereof entered into for the purpose of hedging currency risk related to the principal amount of any Indebtedness on such date of determination, regardless of whether such Swap Contracts or other instruments are recorded under hedge accounting principles in accordance with GAAP.
Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such date over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries on such date, but excluding, without duplication, (a) all Indebtedness consisting of Revolving Loans, L/C Obligations and other revolving loans, letter of credit and bankers acceptance obligations to the extent otherwise included therein, (b) the current portion of interest, (c) the current portion of current and deferred income taxes, (d) the current portion of any Capital Lease Obligations, (e) deferred revenue arising from cash receipts that are earmarked for specific projects, (f) the current portion of deferred acquisition costs, (g) pension assets and the current portion of pension liabilities, and (h) current accrued costs associated with any restructuring or business optimization (including accrued severance and accrued facility closure costs).
Contaminant” means any material or substance with respect to which any Environmental Law or Environmental Permit imposes a duty, liability, obligation or standard of conduct or otherwise controls, limits or regulates, including without limitation any pollutant contaminant (as those terms are defined in 42 U.S.C. §9601(33)), toxic pollutant (as that term is defined in 33 U.S.C. §1362(13)), hazardous substance (as that term is defined in 42 U.S.C. §9601(14)), hazardous chemical (as that term is defined by 29 CFR §1910.1200(c)), hazardous waste (as that term is defined in 42 U.S.C. §6903(5)), or any state or local equivalent of such laws and regulations, including, without limitation, radioactive material, special waste, polychlorinated biphenyls, asbestos, petroleum, including crude oil or any petroleum-derived substance, (or any fraction thereof), solid waste (as that term is defined in 42 U.S.C. § 6903(27)), or breakdown or decomposition product thereof, or any constituent of any such substance or waste, including but not limited to polychlorinated biphenyls and asbestos.
Contingent Obligation” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or other obligation that does not constitute Indebtedness (“Primary Obligations”) of any other Person (the “Primary Obligor”), including any obligation of such Person, whether or not contingent:
(1)    to purchase any such Primary Obligation or any property constituting direct or indirect security therefor;
(2)    to advance or supply funds (a) for the purchase or payment of any such Primary Obligation; or (b) to maintain the working capital or equity capital of the Primary Obligor or otherwise to maintain the net worth or solvency of the Primary Obligor; or
(3)    to purchase property, securities or services primarily for the purpose of assuring the owner of any such Primary Obligation of the ability of the Primary Obligor to make payment of such Primary Obligation against loss in respect thereof.
Contract Consideration” has the meaning specified in the definition of Excess Cash Flow.







Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Contribution Notice” has the meaning set out in section 38 or section 47 of the UK Pensions Act 2004.
Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlled” has a meaning correlative thereto.
Converted Unrestricted Subsidiary” has the meaning specified in the definition of Consolidated EBITDA.
Covenant Transaction” has the meaning specified in Section 1.08(d).
Credit Agreement Refinancing Indebtedness” means (a) any new term loan facilities used to refinance all or a portion of the loans under any Term Loan Facility (each, a “Refinancing Term Loan Facility”) entered into with the consent of the Borrower and the institutions providing such Refinancing Term Loan Facility, (b) any new revolving facilities used to refinance all or a portion of the loans and revolving commitments under any Revolving Facility (each, a “Refinancing Revolving Facility” and, together with the Refinancing Term Loan Facilities, the “Refinancing Facilities”) entered into with the consent of the Borrower and the institutions providing such Refinancing Revolving Facility or (c) one or more additional series of senior unsecured notes or senior secured notes that will be secured by the Collateral on a pari passu basis with the Facilities or secured notes that will be secured on a junior priority basis to the Facilities (including any Registered Equivalent Notes) (any such notes or loans, “Refinancing Notes”); provided that (i) any Refinancing Facilities or Refinancing Notes that are secured shall be subject to a customary intercreditor agreement with terms to be mutually agreed by the Administrative Agent, the Borrower and the lenders with respect to such Refinancing Facilities or Refinancing Notes, (ii)(A) all of the net cash proceeds of such Refinancing Term Loan Facility or Refinancing Notes are immediately applied to permanently repay in whole or in part the Term Loan Facility being refinanced, (B) all of the net cash proceeds of such Refinancing Revolving Facility are immediately applied to repay in whole or in part the Revolving Facility being refinanced and the Revolving Commitments being refinanced shall be permanently reduced by the amount of the commitments under the Refinancing Revolving Facility, and (C) such Refinancing Term Loan Facility, Refinancing Notes and Refinancing Revolving Facility are in an original aggregate principal amount not greater than the aggregate principal amount of the Term Loan Facility or Revolving Facility (as applicable) being refinanced except by an amount equal to (x) accrued interest and premium plus (y) upfront fees and OID plus (z) other fees and expenses or other amounts paid, in each case with respect to such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility, as applicable, (iii) such Refinancing Term Loan Facility or Refinancing Notes have a maturity equal to or later than, and a Weighted Average Life to Maturity equal to or greater than, the loans under the Term Loan Facility being refinanced and, with respect to any Refinancing Notes, shall not have mandatory prepayment provisions (other than those related to customary asset sale, change of control or similar event offers and “applicable high yield discount obligation” (“AHYDO”) payments) that would result in prepayment of such Refinancing Notes prior to the Term Loans being refinanced (it being understood that the Borrower shall be permitted to prepay or offer to purchase any first lien secured Refinancing Notes pursuant to the proviso in Section 2.05(b)(ii)(A)), (iv) such Refinancing Revolving Facility shall not mature (or require scheduled commitment reductions or amortization) prior to the Maturity Date of the Revolving Commitments being refinanced, (v) there shall be no borrowers or guarantors in respect of any Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility that are not the Borrower, the European







Borrowers, or a Guarantor, (vi) if secured, such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility shall not be secured by any assets that do not constitute Collateral for the Facilities, (vii) with respect to any Refinancing Revolving Facility in respect of the Revolving Facility, all payment, borrowing, participation and commitment reduction shall be on a pro rata basis with (or more favorable to) the Revolving Facility (provided that (x) subject to the provisions of Section 2.03 to the extent dealing Letters of Credit under any Revolving Facility which mature or expire after a Maturity Date when there exist Commitments under a Refinancing Revolving Facility with a longer Maturity Date, all such Letters of Credit shall be participated in on a pro rata basis by all Lenders with Revolving Commitments and any Refinancing Revolving Facility in accordance with their Pro Rata Share of the Revolving Facility and such Refinancing Revolving Facility (on an aggregate basis across the Revolving Facility and Refinancing Revolving Facility) and (y) all borrowings under Revolving Commitments and any Refinancing Revolving Facility and repayments thereunder shall be made on a pro rata basis (except for (A) payments of interest and fees at different rates on Commitments under a Refinancing Revolving Facility (and related outstandings) and (B) repayments required upon the Maturity Date of the non-extending Revolving Commitments); and (viii) such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility shall either (A) have covenants no more restrictive (taken as a whole) than those under the Facilities as reasonably determined by the Administrative Agent (except for covenants applicable only to the periods after the final Maturity Date of the Facilities at the time of the incurrence of such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility; it being understood that to the extent that any financial maintenance covenant is added for the benefit of the Facilities, no consent shall be required from the Administrative Agent or any Lender and such Refinancing Term Loan Facility, Refinancing Notes or Refinancing Revolving Facility shall not be deemed to be more restrictive solely because of such financial maintenance covenant) or (B) be on then current market terms for such type of Indebtedness (as reasonably determined in good faith by the Borrower).
Credit Date” means the date of a Credit Extension.
Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
Credit Party” means (a) the Lenders and Affiliates thereof, (b) the Agents and their respective Affiliates and branches, (c) the Arrangers and (d) the permitted successors and permitted assigns of each of the foregoing.
Cross-License Agreement” means an agreement to be entered into by and among the Borrower, Grace Conn and Grace GmbH & Co. KG, a wholly owned subsidiary of Grace Conn, providing each party licenses under certain intellectual property assets owned by the other party, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with, or as not prohibited by, the terms hereof.
CTA” means the Corporation Tax Act 2009 of the United Kingdom.
Debt Issuance” means the issuance by any Person and its Subsidiaries of any Indebtedness for borrowed money.
Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, United Kingdom, Belgium or other applicable jurisdictions from time to time in effect and affecting the rights







of creditors generally, including, with respect to the Belgian Borrower, the Belgian law of 8 August 1997 on bankruptcy and the Belgian law of 31 January 2009 on the continuity of undertakings.
Declining Lender” has the meaning specified in Section 2.05(b)(vii).
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the lapse of grace period, or both, would be an Event of Default.
Default Rate” means, with respect to overdue principal, an interest rate equal to (a) the Applicable Rate applicable to the respective borrowing plus (b) 2.0% per annum and, with respect to any other overdue amount, the interest rate applicable to Base Rate Loans plus 2.0% per annum (other than to Defaulting Lenders).
Defaulting Lender” means, subject to Section 2.18(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the 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 (ii) pay to the Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any L/C Issuer in writing that it does not intend to comply with any of such Lender’s funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other Federal or state regulatory authority acting in such a capacity or (iii) 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 Capital Stock in such Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or 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 clauses (a) through (d) above shall be conclusive absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(b)) upon delivery of written notice of such determination to the Borrower, each L/C Issuer and each Lender.
Designated Credit Line Provider” means any Person that is the lender, administrative agent or other representative with respect to a Designated Credit Line so long as such Person was identified to the Administrative Agent by the Borrower in writing on or prior to the Closing Date or, in the case of any







Designated Credit Lines entered into after the Closing Date, on or prior to the date such Designated Credit Line is entered into; provided, that such provider delivers written notice that has been consented to in writing by the Borrower, in form reasonably satisfactory to the Administrative Agent, (i) describing the Designated Credit Line and setting forth the amount of the Designated Credit Line to be secured by the Collateral and (ii) agreeing to be bound by Section 6.02 of the Security Agreement and Article 9 hereof, as provided in Section 9.11.
Designated Credit Lines” means lines of credit, letter of credit facilities and working capital credit facilities of Foreign Subsidiaries provided by a Designated Credit Line Provider and designated by the Borrower in writing to the Administrative Agent; provided that, at the time of any such designation, the aggregate principal amount of such Designated Credit Line together with all other then outstanding Designated Credit Lines, shall not exceed $80,000,000.
Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the Borrower) of non-cash consideration received by the Borrower or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 7.05.
Designated Preferred Stock” means Preferred Capital Stock of the Borrower or a Parent Entity (other than Disqualified Capital Stock) that is issued for cash (other than to the Borrower or a Subsidiary of the Borrower or an employee stock ownership plan or trust established by the Borrower or any such Subsidiary for the benefit of their employees to the extent funded by the Borrower or such Subsidiary) and that is designated as “Designated Preferred Stock” pursuant to a certificate of a Responsible Officer of the Borrower at or prior to the issuance thereof, the Net Cash Proceeds of which are excluded from the calculation set forth in clause (c) of the definition of “Available Amount”.
Deutsche Bank” means Deutsche Bank AG New York Branch.
Discount Prepayment Accepting Lender” has the meaning assigned to such term in Section 2.05(a)(iv)(B)(2).
Discount Range” has the meaning assigned to such term in Section 2.05(a)(iv)(C)(1).
Discount Range Prepayment Amount” has the meaning assigned to such term in Section 2.05(a)(iv)(C)(1).
Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.05(a)(iv)(C) substantially in the form of Exhibit H.
Discount Range Prepayment Offer” means the irrevocable written offer by a Lender, substantially in the form of Exhibit I, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
Discount Range Prepayment Response Date” has the meaning assigned to such term in Section 2.05(a)(iv)(C)(1).







Discount Range Proration” has the meaning assigned to such term in Section 2.05(a)(iv)(C)(3).
Discounted Loan Prepayment” has the meaning assigned to such term in Section 2.05(a)(iv)(A).
Discounted Prepayment Determination Date” has the meaning assigned to such term in Section 2.05(a)(iv)(D)(3).
Discounted Prepayment Effective Date” means in the case of any Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the respective Specified Discount Prepayment Response Date, Discount Range Prepayment Response Date or Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.05(a)(iv)(B), Section 2.05(a)(iv)(C) or Section 2.05(a)(iv)(D), respectively, unless a different period is agreed to between the Borrower and the Auction Agent acting in their reasonable discretion.
Disinterested Director” means, with respect to any Affiliate Transaction, a member of the Board of Directors of the Borrower having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of the Board of Directors of the Borrower shall be deemed not to have such a financial interest by reason of such member’s holding Capital Stock of the Borrower or any options, warrants or other rights in respect of such Capital Stock.
Disposed EBITDA” means, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary, as applicable, all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as applicable.
Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock or solely at the direction of the issuer), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale or casualty or condemnation event so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale or casualty or condemnation event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination of all outstanding Letters of Credit (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized), (b) is redeemable at the option of the holder thereof (other than if the issuer has the option to settle for Qualified Capital Stock and cash in lieu of fractional shares), in whole or in part, (c) provides for the scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is ninety-one (91) days after the Maturity Date of the Term Loan Facility at the time such capital stock is issued; provided that if such Capital Stock is issued pursuant to a plan for the benefit of employees of the Borrower (or any Parent Entity) or the Restricted Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Borrower or if its Restricted Subsidiaries in







order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.
Disqualified Institution” means, unless otherwise consented to by the Borrower in writing, (a) those financial institutions, lenders and other Persons identified by the Borrower to the Arrangers by name in writing on or prior to the close of business on January 8, 2016, (b) competitors of the Borrower or their respective affiliates, in the case of this clause (b) identified by the Borrower to the Administrative Agent by name in writing on or prior to the close of business on January 8, 2016 or from time to time after the Closing Date or (c) any affiliates of the foregoing that are readily identifiable according to their names, but excluding (in the case of clauses (b) and (c)) bona fide debt funds.
Distribution Related Taxes” means any Tax, including without limitation, any income or withholding tax (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), arising as a result of a repatriation or distribution of funds by a Restricted Subsidiary in connection with a Specified Asset Sale, Specified Debt Issuance or Excess Cash Flow payment, as required pursuant to Section 2.05(b)(v) hereof. For the avoidance of doubt, a tax may be a Distribution Related Tax without regard to whether it is imposed on the payor or the recipient of such funds.
Documentation Agents” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc., each in its capacity as a co-documentation agent under this Agreement.
Dollar” and “$” mean lawful money of the United States.
Dollar Equivalent” means, with respect to an amount denominated in Dollars, such amount, and with respect to an amount denominated in any Alternative Currency, the equivalent in Dollars of such amount determined at the Exchange Rate on the applicable Valuation Date. In making the determination of the Dollar Equivalent for purposes of determining the aggregate available Revolving Commitments or the European Sublimit on any Credit Date, the Administrative Agent shall use the Exchange Rate in effect at the date on which any Borrower requests the Credit Extension for such Credit Date pursuant to the provisions of this Agreement.
Domestic Subsidiary” means any Subsidiary of the Borrower that is organized under the laws of the United States of America, any State thereof, or the District of Columbia.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means, as of any date of determination, (a) a Lender as of such date; (b) an Affiliate of a Lender described in clause (a); (c) an Approved Fund with respect to a Lender described in clause (a); and (d) any other Person (other than a natural person or any Affiliate of the Borrower) approved by







(i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Commitment, the L/C Issuers and (iii) unless an Event of Default has occurred and is continuing under Section 8.01(a), (e) and (f), the Borrower (each such approval not to be unreasonably withheld or delayed).
Employee Matters Agreement” means an agreement to be entered into by and among the Borrower, Grace and Grace–Conn to allocate certain liabilities and responsibilities relating to employment matters, employee compensation and benefits plans and programs, and other related matters, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with, or as not prohibited by, the terms hereof.
Environmental Claim” means any notice of violation, claim (including common law claims), accusation, allegation, cause of action, suit, administrative, regulatory or judicial action or proceeding, investigation, written demand, lien, abatement order, or other order or directive (conditional or otherwise), by any Governmental Authority or any Person for any liability, loss, damage (foreseeable and unforeseeable), personal injury (including sickness, disease or death), tangible or intangible property damage, contribution, cost recovery, indemnity, indirect or consequential damages, punitive damages, fees, out-of-pocket costs, expenses, disbursements, attorneys’ or consultant fees, damage to the environment or natural resources, or for nuisance, pollution, contamination or other adverse effects on the environment, human health, or natural resources, or for fines, penalties, restrictions or injunctive relief, resulting from, arising from, based upon or related to (i) the occurrence or existence of a Release or threat of a Release (whether sudden or non-sudden or accidental or non-accidental) of, the exposure to or presence of any Contaminant in, into or onto the environment, (ii) the use, handling, generation, transportation, storage, treatment or disposal of any Contaminant, or (iii) the violation, or alleged violation, of any Environmental Law or Environmental Permit.
Environmental Laws” means any and all applicable foreign, federal, state or local laws, statutes, ordinances, codes, rules or regulations or orders, decrees, judgments or directives issued by a Governmental Authority, Environmental Permits or Remedial Action standards, levels or objectives imposing liability, duties, obligations or standards of conduct for or relating to pollution, the protection of health, safety or the environment or the use, treatment, storage, transportation, handling, disposal or release of any hazardous material, substance or waste, including, but not limited to, the following United States statutes, as now written and hereafter amended: the Water Pollution Control Act, as codified in 33 U.S.C. §1251 et seq., the Clean Air Act, as codified in 42 U.S.C. §7401 et seq., the Toxic Substances Control Act, as codified in 15 U.S.C. §2601 et seq., the Solid Waste Disposal Act, as codified in 42 U.S.C. §6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act, as codified in 42 U.S.C. §9601 et seq., the Emergency Planning and Community Right-to-Know Act of 1986, as codified in 42 U.S.C. §11001 et seq., and the Safe Drinking Water Act, as codified in 42 U.S.C. §300f et seq., and any related regulations, as well as all state and local equivalents.
Environmental Liability” means any liability, loss, duty or obligation, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries arising from, resulting from or based upon (a) violation, or alleged violation, of any Environmental Law or Environmental Permit, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Contaminant, (c) exposure to any Contaminant, (d) the presence, release or threatened release of any Contaminant into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Environmental Lien” means a Lien in favor of any Governmental Authority for (i) any liability under Environmental Laws or Environmental Permits, or (ii) damages relating to, or costs incurred by such







Governmental Authority in response to, a Release or threatened Release of a Contaminant into the environment.
Environmental Permits” means any and all permits, licenses, certificates, authorizations or approvals of any Governmental Authority required by Environmental Laws or necessary or reasonably required for the current and anticipated future operation of the business of any Loan Party or any of their Restricted Subsidiaries.
Equity Issuance” means any issuance for cash by any Person and its Subsidiaries to any other Person of (a) its Capital Stock, (b) any of its Capital Stock pursuant to the exercise of options or warrants, (c) any of its Capital Stock pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Capital Stock. A Disposition shall not be deemed to be an Equity Issuance.
ERISA” means the Employee Retirement Income Security Act of 1974 as amended from time to time and the regulations promulgated and rulings issued thereunder.
ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Section 4245 of ERISA), or in critical or endangered status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan; (f) the imposition of any material liability under Title IV of ERISA, other than for PBGC premiums not yet due or premiums due but not yet delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate; (g) the failure to satisfy the minimum funding standard under Section 412 or 430 of the Code or Section 302 of ERISA, whether or not waived with respect to any Pension Plan; (h) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan.; or (i) notification that any Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA).
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 legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states, being in part legislative measures to implement the European and Monetary Union as contemplated in the Treaty on European Union.
Eurocurrency Rate Borrowing” means a Borrowing comprised of Eurocurrency Rate Loans.







Eurocurrency Rate Loan” means any Loan bearing interest at a rate determined by reference to the Adjusted Eurocurrency Rate in accordance with the provisions of Article 2.
European Borrowers” has the meaning specified in the preamble hereto.
European Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate Revolving Commitments. The European Sublimit is part of, and not in addition to, the Revolving Facility.
Event of Default” has the meaning specified in Section 8.01.
“Excess Cash Flow” means, for any period, an amount equal to the excess of:
(a)    the sum, without duplication, of:
(i)    Consolidated Net Income for such period;
(ii)    an amount equal to the amount of all non-cash charges (including depreciation and amortization) to the extent deducted in arriving at such Consolidated Net Income;
(iii)    decreases in Consolidated Working Capital for such period (other than (v) appreciation of the Dollar relative to other foreign currencies, (w) any such decreases arising from acquisitions or dispositions by the Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting, (x) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (y) as a result of a liability or obligation that becomes probable or estimable or (z) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under Swap Contracts);
(iv)    an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; and
(v)    cash receipts in respect of Swap Contracts during such period to the extent not otherwise included in Consolidated Net Income; over
(b)    the sum, without duplication, of:
(i)    an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges to the extent included in arriving at such Consolidated Net Income;
(ii)    without duplication of amounts deducted pursuant to clause (x) below in prior fiscal years, the amount of Capital Expenditures or Permitted Acquisitions made in cash during such period, except to the extent that such Capital Expenditures or Permitted Acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;







(iii)    the aggregate amount of all principal payments of Indebtedness of the Borrower and its Restricted Subsidiaries (including the principal component of Capital Lease Obligations, but excluding (X) Indebtedness created hereunder or under any other Loan Document (other than pursuant to Section 2.07(a)) and (Y) all prepayments in respect of any other revolving credit facility, except, in the case of clause (Y), to the extent there is an equivalent permanent reduction in commitments thereunder) made during such period, except to the extent financed with the proceeds of an incurrence or issuance of other Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(iv)    an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income;
(v)    increases in Consolidated Working Capital for such period (other than (v) appreciation of the Dollar relative to other foreign currencies, (w) any such increases arising from acquisitions or dispositions by the Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting, (x) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (y) as a result of a liability or obligation that becomes probable or estimable or (z) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under Swap Contracts);
(vi)    cash payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities (other than Indebtedness) of the Borrower and its Restricted Subsidiaries;
(vii)    without duplication of amounts deducted pursuant to clause (xi) below in prior periods, the amount of Investments and acquisitions made during such period pursuant to Section 7.02 (other than Section 7.02(a), (d) and (dd)(ii)) except to the extent that such Investments and acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(viii)    the amount of Restricted Payments paid during such period pursuant to Section 7.06 (other than Section 7.06(q)(ii) attributable to clause (a) of the definition of Available Amount) except to the extent that such Restricted Payments were financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(ix)    the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness except to the extent that such amounts were financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(x)    the aggregate amount of expenditures actually made by the Borrower and its Restricted Subsidiaries in cash during such period (including







expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period (or otherwise deducted in Consolidated Net Income during such period) and were not financed with the proceeds of an incurrence or issuance of Indebtedness (other than revolving loans) of the Borrower or its Restricted Subsidiaries;
(xi)    without duplication of amounts deducted from Excess Cash Flow in prior periods, (A) the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts and (B) expenditures required to be paid in cash by Borrower or any of its Restricted Subsidiaries pursuant to Applicable Law during the period of four consecutive fiscal quarters of the Borrower following the end of such period (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, Capital Expenditures or acquisitions to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period; provided that to the extent the aggregate amount utilized to finance such Permitted Acquisitions, Capital Expenditures or acquisitions during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall, shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters;
(xii)    the amount of cash taxes (including penalties and interest) paid or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period;
(xiii)    cash expenditures in respect of Swap Contracts during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income;
(xiv)    to the extent added to Consolidated Net Income, cash losses from discontinued operations; and
(xv)    without duplication of any other deduction, cash expenditures in respect of pension and other post retirement obligations and environmental obligations in such period.
Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
Exchange Rate” means the rate at which any currency (the “Original Currency”) may be exchanged into Dollars, Euros or another currency (the “Exchanged Currency”), as set forth on such date on the relevant Thomson Reuters screen at or about 11:00 a.m. (New York time) on such date. In the event that such rate does not appear on the Thomson Reuters screen, the “Exchange Rate” with respect to such Original Currency into such Exchanged Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower or, in the absence of such agreement, such “Exchange Rate” shall instead be the Administrative Agent’s quoted spot rate of exchange in the interbank market where its foreign currency exchange operations in respect of such Original Currency are then being conducted, at or about 11:00 a.m. (local time), on such date for the purchase of the Exchanged Currency, with such Original Currency for delivery two Business Days later.







Excluded Contribution” means Net Cash Proceeds or property or assets received by the Borrower as capital contributions to the equity (other than through the issuance of Disqualified Capital Stock or Designated Preferred Stock) of the Borrower after the Closing Date or from the issuance or sale (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or any Subsidiary of the Borrower for the benefit of their employees to the extent funded by the Borrower or any Restricted Subsidiary) of Capital Stock (other than Disqualified Capital Stock or Designated Preferred Stock) of the Borrower, in each case, to the extent designated as an Excluded Contribution pursuant to a certificate of a Responsible Officer of the Borrower.
Excluded Foreign Subsidiary” means (i) any direct or indirect Foreign Subsidiary, (ii) any direct or indirect Subsidiary of a Foreign Subsidiary or any Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary Holding Company and (iii) any Foreign Subsidiary Holding Company.
Excluded Information” means information (including material non-public information) regarding the Loans of the applicable Class or the Loan Parties hereunder or the European Borrowers that is not known to a Lender participating in a Discounted Voluntary Prepayment or in an assignment to the Borrower, that may be material to a decision by such Lender to participate in such Discounted Voluntary Prepayment or such assignment to the Borrower, as applicable.
Excluded Subsidiary” means any (i) Excluded Foreign Subsidiary, (ii) Unrestricted Subsidiary, (iii) Immaterial Subsidiary, (iv) Captive Insurance Subsidiary, (v) Non-Profit Subsidiary, (vi) Joint Venture and (vii) subsidiary which is a special purpose entity.
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 (however denominated), franchise Taxes, and branch profits Taxes, in each case, (x) imposed 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 thereof) or (y) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such 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 the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.06) or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.01, 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, (iii) Taxes attributable to such Recipient’s failure to comply with Section 3.01(d), (iv) any U.S. federal withholding Taxes imposed under FATCA and (v) with respect to a payment by a UK Tax Borrower hereunder, any deduction or withholding for or on account of Tax imposed by the United Kingdom on payments of interest to it under this Agreement (a “UK Tax Deduction”), if on the date the payment falls due (a) the payment could have been made to the relevant Lender without a UK Tax Deduction if the Lender had been a UK Qualifying Lender, but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority, (b) the relevant Lender is a UK Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of “UK Qualifying Lender” and (A) an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Loan Party making the payment or from the Administrative Agent a certified copy of that Direction and (B) the payment could have been made to the Lender without a UK Tax Deduction if that Direction had not been made, (c) the relevant Lender







is a UK Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of “UK Qualifying Lender” and (A) the relevant Lender has not given a Tax Confirmation to the Administrative Agent or a Loan Party and (B) the payment could have been made to the Lender without a UK Tax Deduction if the Lender had given a Tax Confirmation to the Administrative Agent or a Loan Party, on the basis that the Tax Confirmation would have enabled the relevant Loan Party to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA and (d) the relevant Lender is a Treaty Lender and the UK Borrower making the payment is able to demonstrate that the payment could have been made to the Lender without a UK Tax Deduction had that Lender complied with its obligations under Section 3.01(e).
Expiring Credit Commitment” means a tranche of Revolving Commitments, Additional Revolving Commitments, Additional Revolving Facility Commitments or Extended Revolving Commitments for which the Maturity Date shall have occurred at a time when another tranche or tranches of Revolving Commitments, Additional Revolving Commitments, Additional Revolving Facility Commitments or Extended Revolving Commitments is or are in effect with a longer Maturity Date (each other tranche remaining in effect, a “Non-Expiring Credit Commitment”).
Extended Loans” means the Extended Term Loans and/or the Extended Revolving Loans, as the context may require.
Extended Revolving Borrowing” means a borrowing consisting of simultaneous Extended Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Extended Revolving Lenders.
Extended Revolving Commitments” has the meaning specified in Section 2.16(a).
Extended Revolving Lender” has the meaning specified in Section 2.16(a).
Extended Revolving Loans” has the meaning specified in Section 2.16(a).
Extended Term Borrowing” means a borrowing consisting of simultaneous Extended Term Loans of the same Type (if applicable) and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Extended Term Lenders pursuant to Section 2.16(a).
Extended Term Lender” has the meaning specified in Section 2.16(a).
Extended Term Loans” has the meaning specified in Section 2.16(a).
Extending Lender” has the meaning specified in Section 2.16(a).
Extension” has the meaning specified in Section 2.16(a).
Extension Amendments” has the meaning specified in Section 2.16(c).
Extension Offer” has the meaning specified in Section 2.16(a).
Facility” means the Term Loan Facility, the Revolving Facility, or each Additional Term Facility or Additional Revolving Facility, as the context may require.
FATCA means (a) Sections 1471 through 1474 of the Code as of the date of this Agreement (and any successor or future version thereof that is substantially comparable and not materially more onerous to







comply with), any current or future Treasury regulations promulgated or Revenue Ruling, Revenue Procedure, Notice or other administrative guidance issued thereunder, (b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, in each case, that relates to an intergovernmental agreement between the U.S. and any other jurisdiction and facilitates the implementation of the preceding clause (a), or (c) any agreement entered into (including pursuant to Section 1471(b)(1) of the Code) regarding the implementation of the preceding clauses (a) or (b) with the United States Internal Revenue Service, the U.S. Government or any governmental or taxation authority under any other jurisdiction.
Federal Funds Effective Rate” means for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent.
Fee Letter” means the Facilities Fee Letter executed by the Borrower, the Arrangers and the other parties thereto, dated as of December 23, 2015.
Financial Support Direction” has the meaning set out in section 43 of the UK Pensions Act 2004.
First Lien Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt (other than any portion of Consolidated Total Debt that is unsecured or is secured solely by a Lien that is junior to the Liens securing the Obligations) as of the last day of such Test Period (net of Cash on Hand) to (b) Consolidated EBITDA of the Borrower for such Test Period.
Fixed Charge Coverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated EBITDA of the Borrower for such Test Period to (b) the Fixed Charges of the Borrower for such Test Period.
Fixed Charges” means, with respect to any Person for any period, the sum of:
(1)    Consolidated Interest Expense of such Person for such period;
(2)    all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Capital Stock of any Restricted Subsidiary of such Person during such period; and
(3)    all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Capital Stock during such period.
Flood Certificate” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.
Flood Program” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004, in each case as amended from time to time, and any successor statutes.







Flood Zone” means areas having special flood hazards as described in the National Flood Insurance Act of 1968, as amended from time to time, and any successor statute.
FLSA” means the federal Fair Labor Standards Act, as the same may from time to time be amended or supplemented, including any rules or regulations issued in connection therewith.
Foreign Plan Event” means (a) a foreign governmental authority has instituted proceedings to terminate a Foreign Pension Plan, (b) a foreign governmental authority has appointed a trustee to administer any Foreign Pension Plan in place of the existing administrator, in each case by reason of a distress termination within the meaning of Section 4041(c) of ERISA, treating such Foreign Pension Plan as if it were subject to ERISA; or (c) any Foreign Pension Plan that is required by applicable law to be funded in a trust or other funding vehicle has failed to comply with such funding requirements.
Foreign Pension Plan” means any plan, fund (including, without limitation, any super-annuation fund) or other similar program established or maintained outside of the United States of America by the Borrower or one or more of its Subsidiaries or its Affiliates primarily for the benefit of employees of the Borrower or such Subsidiaries or its Affiliates residing outside the United States of America, which plan, fund, or 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 is not subject to ERISA or the Code.
Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
Foreign Subsidiary Holding Company” means a Domestic Subsidiary all of the assets of which (except for an immaterial amount) consist of the equity or debt of one or more direct or indirect Foreign Subsidiaries that are CFCs.
Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to any L/C Issuer, such Defaulting Lender’s outstanding L/C Obligations with respect to Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.
Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
GAAP” means generally accepted accounting principles in the United States, as in effect from time to time; provided that (A) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith, (B) at any time after the Closing Date, the Borrower may elect, upon notice to the Administrative Agent, to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided herein), including as to the ability of the Borrower or the Required Lenders to make an election pursuant to clause (A) of this proviso, (C) any election made pursuant to clause (B) of this proviso, once made, shall be irrevocable, (D) any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal







quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP and (E) the Borrower may only make an election pursuant to clause (B) of this proviso if it also elects to report any subsequent financial reports required to be made by the Borrower, including pursuant to Sections 6.01(a) and (b), in IFRS; provided further, that the treatment of, and all computations with respect to, leases contained in this Agreement may, in the sole discretion of the Borrower, be treated, and performed, in accordance with GAAP as in effect on the Closing Date.
GCP” means Grace’s Construction Products operating segment and Darex Packaging Technologies business.
GCP Equity Offering” means a sale of Capital Stock of the Borrower or any Parent Entity (other than through the issuance of Disqualified Stock or Designated Preferred Stock or through an Excluded Contribution) other than (a) offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions or other securities of the Borrower or any Parent Entity and (b) issuances of Capital Stock to any Subsidiary of the Borrower.
General Incremental Availability” has the meaning specified in Section 2.14(a)(i).
Goldman Sachs” means Goldman Sachs Bank USA.
Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, 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).
Grace” has the meaning specified in the preliminary statements hereto.
Grace–Conn” means W. R. Grace & Co.–Conn., a Connecticut corporation.
Grace Transitional License Agreement” means an agreement to be entered into by and between the Borrower and Grace–Conn, wherein Grace–Conn will provide a limited license to the Borrower under the Grace trademark for certain products until new brands for those products are phased in, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with, or as not prohibited by, the terms hereof.
Granting Lender” has the meaning specified in Section 10.07(g).
Guarantee” means, as to any Person, without duplication, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by a Primary Obligor in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other obligation or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), and provided further that the







term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity or product warranty obligations, including, but not limited to, those in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related Primary Obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
Guarantee Agreement” means the Guarantee Agreement made by the Borrower and the Guarantors in favor of the Secured Parties, substantially in the form of Exhibit E, together with each other guarantee agreement and guarantee agreement supplement of any Subsidiary in respect of the Obligations of the Borrower delivered pursuant to Section 6.12.
Guarantors” means, collectively, (a) the Subsidiaries listed as such on Schedule I that, as of the Closing Date, have Guaranteed the Obligations of the Borrower (in its capacity as the Borrower under the Loan Documents) pursuant to the Guarantee Agreement, (b) the Borrower (with respect to Obligations other than the direct Obligations of the Borrower) and (c) each other Restricted Subsidiary that is a Subsidiary of the Borrower that has become a Guarantor pursuant to Section 6.12, provided that in no event shall any European Borrower and any Excluded Subsidiary be a Guarantor under this Agreement. For avoidance of doubt, the Borrower in its sole discretion may cause any Restricted Subsidiary that is not otherwise required to become a Guarantor to Guarantee the Obligations by causing such Restricted Subsidiary to execute the Guarantee Agreement and Collateral Documents required by Section 6.12.
Hedging Obligations” means, with respect to any Person, the obligations of such Person under any Swap Contract.
Historical Financial Statements” means (i) the audited combined balance sheet of GCP for the fiscal years ended at December 31, 2013 and December 31, 2014, and the related, as applicable, audited combined statements of earnings and cash flows of GCP and (ii) the unaudited combined balance sheet of GCP as at March 31, 2015, June 30, 2015 and September 30, 2015, and the related, as applicable, combined statements of earnings and cash flows of GCP in each case, prepared in accordance with GAAP (except as otherwise disclosed).
Identified Participating Lenders” has the meaning specified in Section 2.05(a)(iv)(C)(3).
Identified Qualifying Lender” has the meaning specified in Section 2.05(a)(iv)(D)(3).
Immaterial Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Borrower that (i) has not guaranteed any other Indebtedness of the Borrower and (ii) has total assets of less than 5.0% of Total Assets and revenues of less than 5.0% of the total revenues of the Borrower and its Restricted Subsidiaries on a Consolidated basis and, together with all other Immaterial Subsidiaries (as determined in accordance with GAAP), has total assets of less than 10.0% of Total Assets and revenues of less than 10.0% of the total revenues of the Borrower and its Restricted Subsidiaries on a Consolidated basis, in each case, measured at the end of the most recent fiscal period for which internal financial statements are available (provided that prior to the first such availability of financial statements, such determination shall be made based on the Pro Forma Balance Sheet), with revenues being calculated on a pro forma basis giving effect to any acquisitions or dispositions of companies, division or lines of







business since such Pro Forma Balance Sheet date or the start of such four quarter period, as applicable, and on or prior to the date of acquisition of such Subsidiary.
Increased Amount” has the meaning specified in Section 7.01.
Incremental Equivalent Term Indebtedness” has the meaning specified in Section 2.14(a)(v)(D).
Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder.
Indebtedness” means, with respect to any Person on any date of determination (without duplication):
(i)     the principal of Indebtedness of such Person for borrowed money;
(ii)     the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii)    all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments which support financial obligations which would otherwise become Indebtedness (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate amount of drawings thereunder that have not been reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence);
(iv)    the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (except trade payables or similar obligations to trade creditors), which purchase price is due more than one year after the date of placing such property in service or taking final delivery and title thereto;
(v)    Capital Lease Obligations of such Person;
(vi)    the principal component of all obligations, or liquidation preference, of such Person with respect to any Disqualified Capital Stock or, with respect to any Restricted Subsidiary, any Preferred Capital Stock (but excluding, in each case, any accrued dividends);
(vii)    the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of determination (as determined in good faith by the Borrower) and (b) the amount of such Indebtedness of such other Persons;
(viii)    Guarantees by such Person of the principal component of Indebtedness of the type referred to in clauses (i), (ii), (iii), (iv), (v) and (ix) of other Persons to the extent Guaranteed by such Person; and







(ix)    to the extent not otherwise included in this definition, net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement);
with respect to clauses (i), (ii), (iv) and (v) above, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided, that Indebtedness of any Parent Entity appearing upon the balance sheet of the Borrower solely by reason of push-down accounting under GAAP shall be excluded.
The term “Indebtedness” shall not include any lease, concession or license of property (or Guarantee thereof) which would be considered an operating lease under GAAP as in effect on the Closing Date, any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practice, or obligations under any license, permit or other approval (or Guarantees given in respect of such obligations) Incurred prior to the Closing Date or in the ordinary course of business or consistent with past practice.
The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amount of funds borrowed and then outstanding. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness. Indebtedness shall be calculated without giving effect to the effects of Topic No. 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:
(i)
Contingent Obligations Incurred in the ordinary course of business or consistent with past practice, other than Guarantees or other assumptions of Indebtedness;
(ii)
Cash Management Services;
(iii)
any lease, concession or license of property (or Guarantee thereof) which would be considered an operating lease under GAAP as in effect on the Closing Date or any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practice;
(iv)
obligations under any license, permit or other approval (or Guarantees given in respect of such obligations) incurred prior to the Closing Date or in the ordinary course of business or consistent with past practice;
(v)
in connection with the purchase by the Borrower or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner;







(vi)
for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes, or surety bonds, performance bonds or similar obligations;
(vii)
Indebtedness of any Parent Entity appearing on the balance sheet of the Borrower solely by reason of push down accounting under GAAP;
(viii)
obligations under or in respect of Receivables Facilities;
(ix)
Capital Stock (other than Disqualified Capital Stock); or
(x)
amounts owed to dissenting stockholders in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or action (whether actual, contingent, or potential) with respect thereto (including any accrued interest).
Indemnified Liabilities” has the meaning set forth in Section 10.05.
Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
Indemnitees” has the meaning set forth in Section 10.05.
Information” has the meaning specified in Section 10.08.
Information Memorandum” means the Confidential Information Memorandum related to the Facilities and dated as of January 12, 2016.
Informational Website” has the meaning specified in Section 6.02.
Initial Agreement” has the meaning specified in Section 7.09(p).
Intellectual Property Security Agreement” means, collectively, the Copyright Security Agreement, the Trademark Security Agreement and the Patent Security Agreement (each as defined in the Security Agreement), referred to in and substantially in the forms attached to the Security Agreement executed and delivered pursuant to Section 6.12 or the applicable Security Agreement.
Interest Coverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated EBITDA of the Borrower for such Test Period to (b) Consolidated Cash Interest Expense of the Borrower for such Test Period.
Interest Payment Date” means (i) with respect to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan (provided, in the case of each Interest Period of longer than three months “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period) and the Maturity Date of the Facility under which such Loan was made and (ii) with respect to any Base Rate Loan, the last Business Day of each March, June, September and December of each year and the Maturity Date of the Facility under which such Loan was made.







Interest Period” means, with respect to any Eurocurrency Rate Loan, the period commencing on the date of such Borrowing and ending on (i) the numerically corresponding day in the calendar month that is one (1), three (3) or six (6) months thereafter or (ii) if available to all of the relevant Lenders, the numerically corresponding day in the calendar month that is shorter than one month or twelve (12) months thereafter, as selected by Borrower in the applicable Committed Loan Notice; provided, however, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business Day, (b) any Interest Period of one month or more that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month during which such Interest Period ends) shall, subject to clause (c) of this definition, end on the last Business Day of the calendar month of such Interest Period, and (c) no Interest Period in respect of any Borrowing of any given tranche shall extend beyond the respective Maturity Date therefor. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of advances, loans or other extensions of credit (other than advances or extensions of credit to customers, suppliers, directors, officers or employees of any Person in the ordinary course of business or consistent with past practice, and excluding any debt or extension of credit represented by a bank deposit other than a time deposit) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such other Persons, the purchase or other acquisition (in one transaction or a series of related transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person, and all other items that are or would be classified as investments on a balance sheet prepared on the basis of GAAP; provided, however, that endorsements of negotiable instruments and documents in the ordinary course of business or consistent with past practice will not be deemed to be an Investment. If the Borrower or any Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Borrower or any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed to be a new Investment at such time.
For purposes of Section 7.02 and the designation of Restricted and Unrestricted Subsidiaries pursuant to Section 6.12:
(1)
“Investment” will include the portion (proportionate to the Borrower’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets







(as determined by the Borrower) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary; and
(2)
any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Borrower.
Investment Grade Securities” means:
(1)
securities issued or directly and fully Guaranteed or insured by the United States or Canadian government or any agency or instrumentality thereof (other than Cash Equivalents);
(2)
securities issued or directly and fully guaranteed or insured by a member of the European Union, or any agency or instrumentality thereof (other than Cash Equivalents);
(3)
debt securities or debt instruments with a rating of “A-” or higher from S&P or “A3” or higher by Moody’s or the equivalent of such rating by such rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries; and
(4)
investments in any fund that invests exclusively in investments of the type described in clauses (1), (2) and (3) above which fund may also hold cash and Cash Equivalents pending investment or distribution.
IP Rights” has the meaning set forth in Section 5.17.
IRS” means the United States Internal Revenue Service.
ITA” means the Income Tax Act 2007 of the United Kingdom.
Joinder Agreement” means an agreement substantially in the form of Exhibit Q, with such changes as are necessary to specify, in compliance with Section 2.14, the terms of any Additional Term Commitments, Additional Revolving Facility Commitments or Additional Revolving Commitments and extensions of credit thereunder.
Joint Venture” means (a) any Person which would constitute an “equity method investee” of the Borrower or any of its Restricted Subsidiaries and (b) any Person in whom the Borrower or any of its Restricted Subsidiaries beneficially owns any Capital Stock that is not a Subsidiary.
Judgment Currency” has the meaning specified in Section 1.08(h).
Junior Financing” has the meaning specified in the definition of “Restricted Payment”.
Junior Financing Documentation” means any documentation governing any Junior Financing.
Jurisdictional Requirements” means that (i) the Borrower remains organized under the laws of the United States, any state thereof or the District of Columbia, (ii) the UK Borrower remains organized







under the laws of England and Wales and (iii) the Belgian Borrower remains organized under the laws of Belgium.
“L/C Advance” means, as to any Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Revolving Percentage.
L/C Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer and acceptable to the Administrative Agent, the applicable L/C Issuer and the Borrower.
L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed by the Borrower on the date when made or refinanced as a Revolving Borrowing.
L/C Commitment” means, as to any L/C Issuer, its commitment to issue Letters of Credit, and to amend, renew or extend Letters of Credit previously issued by it, pursuant to Section 2.03, in an aggregate face amount at any time outstanding not to exceed (a) in the case of any L/C Issuer party hereto as of the Closing Date, the amount set forth opposite such L/C Issuer’s name on Schedule 2.01 under the heading “L/C Commitments” and (b) in the case of any Revolving Lender that becomes a L/C Issuer hereunder thereafter, that amount which shall be set forth in the written agreement by which such Lender shall become an L/C Issuer, in each case as the maximum outstanding face amount of Letters of Credit to be issued by such L/C Issuer, as such commitment may be changed from time to time pursuant to the terms hereof or with the agreement in writing of such Lender, the Borrower and the Administrative Agent. The aggregate L/C Commitments of all the L/C Issuers shall be less than or equal to the L/C Sublimit at all times.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or the extension of the expiry date thereof, or the renewal or increase of the principal amount thereof.
L/C Documents” means, as to any Letter of Credit, each L/C Application and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.
L/C Expiration Date” means the day that is five Business Days prior to the scheduled Maturity Date then in effect with respect to the applicable Revolving Facility (or, if such day is not a Business Day, the immediately preceding Business Day).
L/C Fees” has the meaning assigned to such term in Section 2.09(b)(i).
L/C Issuer” means each of Bank of America, N.A. and Deutsche Bank AG New York Branch, in each case, in its capacity as issuer of Letters of Credit hereunder and each other Revolving Lender reasonably acceptable to each of the Administrative Agent and the Borrower that has entered into a letter of credit issuer agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, in each case, in its capacity as an issuer of Letters of Credit hereunder, together with their respective permitted successors and assigns in such capacity. Each L/C Issuer may, with the prior written consent of the Borrower, in its reasonable discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer, in which case the L/C Issuer shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one L/C Issuer at any time, references herein and in the other Loan Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all L/C Issuers, as the context requires.







L/C Obligations” means, as at any date of determination, the aggregate undrawn face amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts with respect to Letters of Credit, including, without duplication, all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.10. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
L/C Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate Revolving Commitments. The L/C Sublimit is part of, and not in addition to, the Revolving Facility.
Laws” means, collectively, all applicable international, foreign, federal, state, commonwealth and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, common laws and administrative or judicial precedents or authorities, including the interpretation thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
LCA Election” has the meaning set forth in Section 1.13.
LCA Test Date” has the meaning set forth in Section 1.13.
Lender” means, at any time, any lender that has a Commitment or holds a Loan at such time and, as the context requires, includes each L/C Issuer.
Letter of Credit” means any letter of credit issued by an L/C Issuer hereunder for the account of the Borrower or any of its Subsidiaries, including each letter of credit listed on Schedule 1.01(b) that is issued and outstanding as of the Closing Date and designated as a Letter of Credit. Each such letter of credit listed on Schedule 1.01(b) shall be deemed to constitute a Letter of Credit issued hereunder on the Closing Date for all purposes under this Agreement and the other Loan Documents.
Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing). For the avoidance of doubt, “Lien” shall not be deemed to include any license of any IP Rights.
Limited Condition Financing” means any incurrence of Indebtedness related to, and identified at the time of, any Limited Condition Transaction.
Limited Condition Transaction” means any Permitted Acquisition by one or more of Borrower or any of the Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
Loan” means an extension of credit by a Lender to the Borrower or any European Borrower under Article 2.
Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guarantee Agreement, (d) the Collateral Documents, (e) each L/C Application and (f) the Fee Letter.







Loan Parties” means, collectively, the Borrower and each Guarantor; provided that, for the avoidance of doubt, “Loan Parties” shall exclude the European Borrowers.
London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurocurrency market.
LTM EBITDA” means Consolidated EBITDA of the Borrower measured for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal Consolidated financial statements of the Borrower have been delivered, in each case calculated on a Pro Forma Basis, as applicable.
Management Advances” means loans or advances made to, or Guarantees with respect to loans or advances made to, directors, officers, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary:
(1)    (a) in respect of travel, entertainment or moving related expenses Incurred in the ordinary course of business or consistent with past practice or (b) for purposes of funding any such person’s purchase of Capital Stock (or similar obligations) of the Borrower, its Subsidiaries or any Parent Entity with (in the case of this sub-clause (b)) the approval of the Board of Directors;
(2)    in respect of moving related expenses Incurred in connection with any closing or consolidation of any facility or office; or
(3)    not exceeding $10,000,000 in the aggregate outstanding at any time.
Material Adverse Effect” means a materially adverse effect on (a) the business, assets, results of operations, properties or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower, the other Loan Parties and the European Borrowers, taken as a whole, to perform their payment obligations under the applicable Loan Documents or (c) the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents.
Material First Tier Foreign Subsidiary” means any Foreign Subsidiary (i) whose Capital Stock is directly owned by any Loan Party and (ii) that constitutes a Material Subsidiary.
Material Indebtedness” means Indebtedness (other than the Obligations under the Loan Documents) of the Loan Parties or any European Borrower, individually or in the aggregate, having an aggregate principal amount exceeding $50,000,000.
Material Real Property” means (a) as of the Closing Date, the fee owned real property set forth on Schedule 5.11(b) and (b) fee owned real property owned by any Loan Party and acquired after the Closing Date with a fair market value in excess of $20,000,000; provided that, “Material Real Property” shall be limited to fee owned real property located in the United States.
Material Subsidiary” means any Restricted Subsidiary of the Borrower other than an Immaterial Subsidiary.
Maturity Date” means (a) with respect to the Revolving Facility, the date that is five years following the Closing Date, (b) with respect to the Term Loan Facility, the date that is six years following the Closing Date, (c) with respect to any Additional Term Loans, the maturity date for such Series of Additional Term Loans specified in the applicable Joinder Agreement, (d) with respect to any Additional Revolving Loans in respect of an Additional Revolving Facility, the maturity date for such Series of







Additional Revolving Loans specified in the applicable Joinder Agreement and (e) with respect to any Replacement Term Loans, the maturity date for such Series of Replacement Term Loans determined in accordance with Section 10.01; provided, however, that if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day; provided, further, that any Maturity Date may be extended as provided by Section 2.16.
Maximum Rate” has the meaning specified in Section 10.10.
Minimum Collateral Amount” means, at any time, (a) as to Cash Collateral consisting of cash or deposit account balances, an amount equal to 100% of the Fronting Exposure of all L/C Issuers with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Administrative Agent and the L/C Issuers in their sole discretion.
Minimum Extension Condition” has the meaning specified in Section 2.16(b).
Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
Mortgage” means any deed of trust, trust deed, mortgages or other comparable instrument covering the Material Real Property required to be mortgaged pursuant to this Agreement in form and substance reasonably acceptable to the Administrative Agent and the Borrower executed and delivered pursuant to Section 6.12.
Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which contributions are or have, within the preceding six years, been made, or are or were, within the preceding six years, required to be made, by the Borrower or any of its ERISA Affiliates or any Subsidiary of the Borrower or ERISA Affiliates of such Subsidiary.
Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.
Net Cash Proceeds” means:
(a)    with respect to the Disposition of any asset by the Borrower or any of its Restricted Subsidiaries or any Casualty Event, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of the Borrower or any of its Restricted Subsidiaries) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is required to be repaid (and is timely repaid) in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents), (B) the out-of-pocket fees and expenses (including, without limitation, attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by the Borrower or such Restricted Subsidiary in connection with such Disposition or Casualty Event, (C) Taxes (or Restricted Payments to the extent permitted hereunder made in respect of taxes) paid or reasonably estimated to be payable in connection therewith by the Borrower or such Restricted







Subsidiary and attributable to such Disposition or Casualty Event (including, in respect of any proceeds received in connection with a Disposition or Casualty Event of any asset of any Restricted Subsidiary organized under the laws of a jurisdiction different from the jurisdiction of organization of the Borrower, deductions in respect of withholding and other Taxes that are payable in cash if such funds are repatriated to the jurisdiction of the Borrower), (D) any reserve for adjustment in respect of (1) the sale price of such asset or assets established in accordance with GAAP and (2) any liabilities associated with such asset or assets and retained by the Borrower or any of its Restricted Subsidiaries after such sale or other Disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, (E) in the case of any Disposition or Casualty Event by a non-wholly owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (E)) attributable to minority interests and not available for distribution to or for the account of Borrower or a wholly owned Restricted Subsidiary as a result thereof and (F) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition (provided that to the extent that any amounts are released from such escrow to Borrower or a Restricted Subsidiary, such amounts net of any related expenses shall constitute Net Cash Proceeds). It being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents (i) received upon the Disposition of any non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in respect of any such Disposition or Casualty Event and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or, if such liabilities have not been satisfied in cash and such reserve not reversed within three hundred and sixty-five (365) days after such Disposition or Casualty Event, the amount of such reserve; provided that (x) no proceeds realized in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such proceeds shall exceed $20,000,000 and (y) no proceeds shall constitute Net Cash Proceeds under this clause (a) in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $40,000,000 (and thereafter only proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a)); and
(b)    with respect to the incurrence or issuance of any Indebtedness by the Borrower or any of its Restricted Subsidiaries, the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) (x) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses (including attorneys’ fees) and other customary expenses, incurred by the Borrower or such Restricted Subsidiary in connection with such incurrence or issuance (including, in the case of Indebtedness of any Foreign Subsidiary, deduction in respect of withholding Taxes that are payable in cash if such funds are repatriated) and (y) all taxes paid or reasonably estimated to be payable as a result thereof.
Non-Consenting Lender” has the meaning specified in Section 3.06(d).
Non-Defaulting Lender” means, as to any Facility, a Lender thereunder that is not a Defaulting Lender.
Non-Expiring Credit Commitment” has the meaning specified in the definition of “Expiring Credit Commitment”.
Non-Profit Subsidiary” means any Subsidiary of the Borrower that is qualified under Section 501(c) of the Code as a nonprofit corporation.







Non-Repatriated Amounts” has the meaning specified in Section 2.05(b)(v).
Non-US Lender” has the meaning specified in Section 3.01(d).
Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).
Note” means a Term Note or Revolving Note, as the context may require.
Obligations” means (i) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party or any European Borrower arising under any Loan Document with respect to any Loan or Letter of Credit, (ii) all advances to, and debts, liabilities, obligations, covenants and duties arising under any Designated Credit Line and (iii) all Secured Bank Product Obligations, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any European Borrower of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties and the European Borrowers under the Loan Documents include the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party or the European Borrowers under any Loan Document and (b) the obligation of any Loan Party or any European Borrower to reimburse any amount in respect of any of the foregoing that any Lender may elect to pay or advance on behalf of such Loan Party or European Borrower in accordance with the terms of the Loan Documents.
OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.
Offered Amount” has the meaning specified in Section 2.05(a)(iv)(D)(1).
Offered Discount” has the meaning specified in Section 2.05(a)(iv)(D)(1).
Organizational Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutional documents with respect to any non-US jurisdiction) and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
OSHA” means the Occupational Health and Safety Act, as the same may from time to time be amended or supplemented, including any rules or regulations issued in connection therewith.
Other Commitments” means one or more Classes of Loan commitments hereunder that result from a Refinancing Amendment.
Other Connection Taxes” means, with respect to any Lender or the Administrative Agent, Taxes imposed as a result of a present or former connection between such Lender or the Administrative Agent and the jurisdiction imposing such Tax (other than connections arising solely from such Lender or the Administrative Agent having executed, delivered, become a party to, performed its obligations under,







received payments under, received or perfected a security interest under, engaged in any transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Other Loans” means one or more Classes of Loans that result from a Refinancing Amendment.
Other Taxes” means all present or future stamp, court or documentary, registration, 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 Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
Outstanding Amount” means with respect to the Loans on any date, the principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date.
Parallel Debt” has the meaning specified in Section 10.25(a).
Parent Entity” means any, direct or indirect, parent of the Borrower.
Parent Entity Expenses” means:
(1)    costs (including all professional fees and expenses) Incurred by any Parent Entity in connection with reporting obligations under or otherwise Incurred in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement or any other agreement or instrument relating to the Loans, the Guarantees or any other Indebtedness of the Borrower or any Restricted Subsidiary, including in respect of any reports filed or delivered with respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated thereunder;
(2)    customary indemnification obligations of any Parent Entity owing to directors, officers, employees or other Persons under its articles, charter, by-laws, partnership agreement or other organizational documents or pursuant to written agreements with any such Person to the extent relating to the Borrower and its Subsidiaries;
(3)    obligations of any Parent Entity in respect of director and officer insurance (including premiums therefor) to the extent relating to the Borrower and its Subsidiaries;
(4)    (x) general corporate overhead expenses, including professional fees and expenses and (y) other operational expenses of any Parent Entity related to the ownership or operation of the business of the Borrower or any of its Restricted Subsidiaries;
(5)    expenses Incurred by any Parent Entity in connection with (i) any offering, sale, conversion or exchange of Capital Stock or Indebtedness and (ii) related to any compensation paid to officers, directors and employees; and
(6)    amounts to finance Investments that would otherwise be permitted to be made pursuant to Section 7.02 if made by the Borrower; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such direct or indirect parent company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the capital of the Borrower or one of its Restricted Subsidiaries or (2) the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower or







one of its Restricted Subsidiaries (to the extent not prohibited by Section 7.04) in order to consummate such Investment, (C) such direct or indirect parent company and its Affiliates (other than the Borrower or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Borrower or a Restricted Subsidiary could have given such consideration or made such payment in compliance herewith and such consideration or other payment is included as a Restricted Payment or an Investment hereunder, (D) any property received by the Borrower shall not increase the Available Amount and (E) such Investment shall be deemed to be made by the Borrower or such Restricted Subsidiary pursuant to Section 7.02.
Participant” has the meaning specified in Section 10.07(d).
Participant Register” has the meaning specified in Section 10.07(d).
Participating Lender” has the meaning specified in Section 2.05(a)(iv)(C)(2).
Party” has the meaning specified in Section 3.01(o).
PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into Law October 26, 2001)).
PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Perfection Certificate” means a perfection certificate in the form of the perfection certificate provided to the Administrative Agent on the Closing Date (or such other form as the Administrative Agent may approve).
Pension Plan” means any plan described in Section 4021(a) of ERISA and not excluded pursuant to Section 4021(b) thereof or that is subject to Title IV of ERISA or Section 412 or 430 of the Code or Section 302 of ERISA, which is or has, within the preceding six years, been established or maintained, or to which contributions are or have, within the preceding six years, been made, by the Borrower or any of its ERISA Affiliates or any Subsidiary of the Borrower or any ERISA Affiliates of such Subsidiary, but not including any Multiemployer Plan.
Pensions Regulator” means the body corporate known as the Pensions Regulator and established under Part 1 of the UK Pensions Act 2004.
Permitted Acquisition” means any purchase or acquisition pursuant to Section 7.02(b) or (c).
Permitted Additional Junior Debt” shall mean senior unsecured, senior subordinated or subordinated debt (including, as applicable, Registered Equivalent Notes), in each case issued or incurred by the Borrower or any of its Restricted Subsidiaries after the Closing Date; provided that such Indebtedness does not mature or have scheduled amortization or payments of principal and is not subject to mandatory redemption or prepayment (except customary asset sale, change of control, casualty or condemnation provisions and AHYDO payments), in each case, prior to 91 days after the latest Maturity Date at the time such debt is issued or incurred.
Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents between the Borrower or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents







received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 7.05 and Section 2.06(b)(ii).
Permitted Liens” means, with respect to any Person:
(a)    pledges, deposits or Liens under workmen’s compensation laws, payroll taxes, unemployment insurance laws, social security laws or similar legislation, or insurance related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements), or in connection with bids, tenders, completion guarantees, contracts (other than for borrowed money) or leases, or to secure utilities, licenses, public or statutory obligations, or to secure the performance of bids, trade contracts, government contracts and leases, statutory obligations, surety, stay, indemnity, judgment, customs, appeal or performance bonds, return-of-money bonds, performance and completion guarantees, bankers’ acceptance facilities (or other similar bonds, instruments or obligations), obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, or as security for contested taxes or import or customs duties or for the payment of rent, or other obligations of like nature, in each case Incurred in the ordinary course of business or consistent with past practice;
(b)    Liens with respect to outstanding motor vehicle fines and Liens imposed by law, including carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s, construction contractors’ or other like Liens, in each case for sums not yet overdue for a period of more than 60 days or that are bonded or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(c)    Liens for Taxes, assessments or governmental charges which are not overdue for a period of more than 60 days or, if more than 60 days overdue, which are being contested in good faith by appropriate proceedings; provided that appropriate reserves required pursuant to GAAP (or other applicable accounting principles) have been made in respect thereof;
(d)    encumbrances, charges, ground leases, easements (including reciprocal easement agreements), survey exceptions, land use regulations, covenants, conditions, restrictions, encroachments, protrusions, by-law, regulation, zoning restrictions or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects or irregularities in title and similar encumbrances or matters that would be disclosed in an accurate survey affecting real property) as to the use of real properties or Liens incidental to the conduct of the business of the Borrower and its Restricted Subsidiaries or to the ownership of their properties, including servicing agreements, development agreements, site plan agreements, subdivision agreements, facilities sharing agreements, cost sharing agreement and other agreements, which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of the Borrower and its Restricted Subsidiaries (taken as a whole);
(e)    Liens (i) on assets or property of the Borrower or any Restricted Subsidiary securing Hedging Obligations or Cash Management Services permitted hereunder; (ii) that are contractual rights of set-off or, in the case of clause (x) or (y) below, other bankers’ Liens







(x) relating to treasury, depository and cash management services or any automated clearing house transfers of funds in the ordinary course of business and not given in connection with the issuance of Indebtedness, (y) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Subsidiary or (z) relating to purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business; (iii) on cash accounts securing Indebtedness incurred under Section 7.03(h)(iii) with financial institutions; (iv) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business, consistent with past practice and not for speculative purposes; and/or (v) (x) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (y) in favor of a banking institution arising as a matter of law or by operation of customary standard terms and conditions of the account keeping encumbering deposits (including the right of set-off) arising in the ordinary course of business in connection with the maintenance of such accounts and (z) arising under customary general terms of the account bank in relation to any bank account maintained with such bank and attaching only to such account and the products and proceeds thereof, which Liens, in any event, do not secure any Indebtedness;
(f)    leases, licenses, subleases and sublicenses of assets (including real property and intellectual property rights), in each case entered into in the ordinary course of business;
(g)    Liens securing or otherwise arising out of judgments, decrees, attachments, orders or awards not giving rise to an Event of Default so long as (i) any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree, order or award have not been finally terminated, (ii) the period within which such proceedings may be initiated has not expired or (iii) no more than 60 days have passed after (x) such judgment, decree, order or award has become final or (y) such period within which such proceedings may be initiated has expired;
(h)    Liens (i) on assets or property of the Borrower or any Restricted Subsidiary for the purpose of securing Capital Lease Obligations, or Purchase Money Obligations, or securing the payment of all or a part of the purchase price of, or securing other Indebtedness Incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that (x) the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be Incurred hereunder and (y) any such Liens may not extend to any assets or property of the Borrower or any Restricted Subsidiary other than assets or property acquired, improved, constructed or leased with the proceeds of such Indebtedness and any improvements or accessions to such assets and property and (ii) on any interest or title of a licensor, sublicensor, lessor or sublessor under any Capital Lease Obligations or operating lease;
(i)    Liens perfected or evidenced by UCC financing statement filings (or similar filings in other applicable jurisdictions) regarding operating leases entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business, including precautionary UCC financing statements;
(j)    Liens existing on the Closing Date and described in Schedule 7.01(j) (or to the extent not listed on such Schedule 7.01(j), where the fair market value of all property to which such Liens attach is less than $10,000,000 in the aggregate);







(k)    Liens on property, other assets or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary (or at the time the Borrower or a Restricted Subsidiary acquires such property, other assets or shares of stock, including any acquisition by means of a merger, amalgamation, consolidation or other business combination transaction with or into the Borrower or any Restricted Subsidiary) and any modifications, replacements, refinancings, restructurings, renewals or extensions thereof; provided, however, that such Liens are not created, Incurred or assumed in anticipation of or in connection with such other Person becoming a Restricted Subsidiary (or such acquisition of such property, other assets or stock); provided, further, that such Liens are limited to all or part of the same property, other assets or stock (plus improvements, accession, proceeds or dividends or distributions in connection with the original property, other assets or stock) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate;
(l)    Liens on assets or property of any Restricted Subsidiary securing Indebtedness or other obligations of such Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary, or Liens in favor of the Borrower or any Loan Party; provided that such Lien does not cause or result in any assets or property of the Loan Parties becoming assets or property not constituting Collateral;
(m)    (i) Liens securing Refinancing Indebtedness Incurred (as permitted under Section 7.03) to refinance Indebtedness that was previously so secured (excluding the Obligations), and permitted to be secured hereunder; provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced and (ii) Liens securing any Refinancing Facility and Refinancing Notes;
(n)    (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property over which the Borrower or any Restricted Subsidiary has easement rights or on any leased property and subordination or similar arrangements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
(o)    any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any non-wholly owned Restricted Subsidiary or joint venture or similar arrangement pursuant to any organizational document, joint venture or similar agreement;
(p)    Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets;
(q)    Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
(r)    Liens securing Indebtedness permitted by Section 7.03(e); provided that such Liens shall only be permitted if (x) in the case of assumed Indebtedness, such Liens are limited to all or part of the same property or assets, including Capital Stock (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) acquired, or of any Person acquired or merged, consolidated or amalgamated with or







into the Borrower or any Restricted Subsidiary, in any transaction to which such Indebtedness relates and (y) on the date of the Incurrence of such Indebtedness after giving effect to such Incurrence, the Total Secured Leverage Ratio would equal or be less than 1.00:1.00;
(s)    Liens Incurred to secure obligations in respect of any Indebtedness permitted by Section 7.03(s); provided that only the equipment the acquisition of which is financed by such Indebtedness shall be encumbered by such Liens;
(t)    Liens to secure Indebtedness permitted under Section 7.03 of any Foreign Subsidiary covering only the assets of such Foreign Subsidiary;
(u)    Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Indebtedness of such Unrestricted Subsidiary;
(v)    any security granted over the marketable securities portfolio described in clause (9) of the definition of “Cash Equivalents” in connection with the disposal thereof to a third party;
(w)    Liens on (i) goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Borrower or any Restricted Subsidiary or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments and (ii) specific items of inventory of other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(x)    Liens on equipment of the Borrower or any Restricted Subsidiary granted in the ordinary course of business to clients or suppliers of the Borrower or any Restricted Subsidiary;
(y)    Liens on assets or securities deemed to arise in connection with and solely as a result of the execution, delivery or performance of contracts to sell such assets or securities if such sale is otherwise permitted hereunder;
(z)    Liens arising by operation of law or contract on insurance policies and the proceeds thereof to secure premiums thereunder, and Liens, pledges and deposits in the ordinary course of business securing liability for premiums or reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefits of) insurance carriers;
(aa)    Liens solely on any cash earnest money deposits made in connection with any letter of intent or purchase agreement permitted hereunder;
(bb)    Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted under Section 7.02 to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to sell any property in an asset sale permitted hereunder, in each case, solely to the extent such Investment or asset sale, as the case may be, would have been permitted on the date of the creation of such Lien;
(cc)    Liens securing Indebtedness and other obligations not prohibited hereunder in an aggregate principal amount not to exceed the greater of $60,000,000 and 6.0% of Total Assets







(determined at the time Incurred) at any one time outstanding, including any Refinancing Indebtedness in respect thereof;
(dd)    [Reserved]
(ee)    Liens deemed to exist in connection with Investments in repurchase agreements permitted by Section 7.03, provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(ff)    Liens on Receivables Assets incurred in connection with a Receivables Facility;
(gg)    Settlement Liens;
(hh)    rights of recapture of unused real property in favor of the seller of such property set forth in customary purchase agreements and related arrangements with any government, statutory or regulatory authority;
(ii)    Liens arising by operation of law under Article 2 of the Uniform Commercial Code in favor of a reclaiming seller of goods or buyer of goods;
(jj)    Liens in the nature of the right of set-off in favor of counterparties to contractual agreements with the Borrower or any other Loan Party in the ordinary course of business;
(kk)    security given to a public or private utility or government authority as required in the ordinary course of business;
(ll)    any exclusive or non-exclusive licenses granted under any intellectual property rights that do not secure or is not granted in connection with incurrence of Indebtedness;
(mm)    the rights reserved to or vested in any Person or government, statutory or regulatory authority by the terms of any lease, license, franchise, grant or permit held by the Borrower or any Restricted Subsidiary or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(nn)    restrictive covenants affecting the use to which real property may be put;
(oo)    Liens or covenants restricting or prohibiting access to or from lands abutting on controlled access highways or covenants affecting the use to which lands may be put; provided that such Liens or covenants do not interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary;
(pp)    Liens arising in connection with any Permitted Tax Restructuring or any intercompany license agreement among the Borrower and its Restricted Subsidiaries;
(qq)    Liens on the Collateral pursuant to the documentation securing Additional Notes or Incremental Equivalent Term Indebtedness permitted to be incurred; provided, that such Liens are pari passu or junior in priority to the Obligations pursuant to a customary intercreditor agreement with terms to be mutually agreed by the Administrative Agent, the Borrower and the trustee, agent or holders with respect to such Additional Notes or Incremental Equivalent Term Indebtedness entered into prior to the date of such Incurrence; and







(rr)    Liens pursuant to any Loan Document including Liens securing Replacement Term Loans, Additional Term Loans, Additional Revolving Loans, Additional Revolving Facility Commitments and Additional Revolving Commitments.
In the event that any Permitted Lien meets the criteria of more than one of the categories of Permitted Liens described in clauses (a) through (rr) above, the Borrower in its sole discretion may divide, classify or from time to time reclassify all or any portion of such Permitted Lien to the extent such Permitted Lien would be permitted to be incurred under such clause at the time of such classification or reclassification, and the Borrower will only be required to include the amount and type of such Permitted Lien in one or more of the above clauses; provided that all Liens securing the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (rr) of this definition.
Permitted Repricing Amendment” has the meaning specified in Section 10.01.
Permitted Tax Distribution” means:
(a)
if and for so long as the Borrower is a member of a group filing a consolidated or combined tax return with any Parent Entity, any dividends or other distributions to fund any income Taxes for which such Parent Entity is liable up to an amount not to exceed the amount of any such Taxes that the Borrower and its Subsidiaries would have been required to pay on a separate company basis or on a consolidated basis calculated as if the Borrower and its Subsidiaries had paid Tax on a consolidated, combined, group, affiliated or unitary basis on behalf of an affiliated group consisting only of the Borrower and its Subsidiaries; and
(b)
for any taxable year (or portion thereof) ending after the Closing Date for which the Borrower is treated as a disregarded entity, partnership, or other flow-through entity for federal, state and/or local income Tax purposes, the payment of dividends or other distributions to the Borrower’s direct owner(s) to fund the income Tax liability of such owner(s) (or, if a direct owner is a disregarded entity, partnership or other flow-through entity for federal, state and/or local income Tax purposes, of the indirect owner(s)) for such taxable year (or portion thereof) attributable to the operations and activities of the Borrower and its direct and indirect Subsidiaries, in an aggregate amount not to exceed the product of (x) the highest combined marginal federal and applicable state, and/or local statutory Tax rate (after taking into account the deductibility of U.S. state and local income Tax for U.S. federal income Tax purposes) and (y) the taxable income of the Borrower for such taxable year (or portion thereof).
Permitted Tax Restructuring” means one or more transactions pursuant to which the Capital Stock of one or more Foreign Subsidiaries is transferred to another Foreign Subsidiary in exchange for equity or debt of the transferee or as a capital contribution to the transferee; provided that none of the Subsidiaries that were not Excluded Subsidiaries prior to such transactions shall become Excluded Subsidiaries as a result thereof.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Platform” has the meaning specified in Section 6.02(d).
Pounds Sterling” means the lawful currency of the United Kingdom.







Preferred Capital Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
Prepayment Notice” means a notice by the Borrower to prepay Loans, which shall be substantially in the form of Exhibit P (or such other form as the Administrative Agent may approve).
Prepayment Percentage” means the applicable percentage based on the First Lien Leverage Ratio set forth below for each item set forth below:
Level
Excess Cash Flow
Level I
≥1.50:1.00
50%
Level II
<1.50:1.00 but ≥1.00:1.00
25%
Level III
<1.00:1.00
0%

Any increase or decrease in the Prepayment Percentage resulting from a change in the First Lien Leverage Ratio shall become effective as of the first Business Day immediately following the date financial statements have been delivered pursuant to Section 6.01(a) and a Compliance Certificate is delivered pursuant to Section 6.02(b); provided that, at the option of the Required Lenders (other than with respect to Events of Default under Section 8.01(e) or (f)), Level I shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to but excluding the date on which such Compliance Certificate is so delivered (and thereafter the level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under Section 8.01(a), (e) or (f) shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the level otherwise determined in accordance with this definition shall apply).
Primary Obligation” has the meaning specified in the definition of “Contingent Obligation”.
Primary Obligor” has the meaning specified in the definition of “Contingent Obligation”.
Prime Rate” means the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
Principal Office” means, for each of the Administrative Agent and each L/C Issuer, such Person’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as such Person may from time to time notify in writing to the Borrower, the Administrative Agent and the L/C Issuers.
Pro Forma Balance Sheet” has the meaning specified in Section 5.05(c).







Pro Forma Basis” and “Pro Forma Effect” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.09.
Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Term Loans of any Lender, as the context requires, the percentage obtained by dividing (x) the Term Loan Exposure of that Lender by (y) the aggregate Term Loan Exposure of all Lenders, (ii) with respect to all payments, computations and other matters relating to the Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit issued or participations purchased therein by any Lender, the Revolving Percentage of that Lender, and (iii) with respect to all payments, computations and other matters relating to any other Facility, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments and/or Loans of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the aggregate Commitments and/or Loans then outstanding under the applicable Facility or Facilities at such time.
Public Company Costs” means, as to any Person, costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act and the Exchange Act or any other comparable body of laws, rules or regulations, as companies with listed equity, directors’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees, in each case to the extent arising solely by virtue of the listing of such Person’s equity securities on a national securities exchange.
Public Lender” has the meaning specified in Section 6.02.
Purchase Money Obligations” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.
Qualifying Lender” has the meaning specified in Section 2.05(a)(iv)(D)(3).
Ratio Incremental Availability” has the meaning specified in Section 2.14(a)(i).
Receivables Assets” means (a) any accounts receivable owed to the Borrower or a Restricted Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred or pledged by the Borrower or a Restricted Subsidiary to a commercial bank or Affiliate thereof in connection with a Receivables Facility.
Receivables Facility” means any of one or more receivables financing facilities (including for factoring, securitizations and sales transactions) as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for Securitization







Repurchase Obligations and customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Borrower or any of its Restricted Subsidiaries sells its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn sells its accounts receivable to a Person that is not a Restricted Subsidiary.
Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.
Receivables Subsidiary” means any Subsidiary formed for the purpose of, and that solely engages only in one or more Receivables Facilities and other activities reasonably related thereto.
Recipient” means (a) the Administrative Agent, (b) any Lender, (c) any Revolving Lender, and (d) the L/C Issuer, as applicable.
Refinanced Term Loans” has the meaning specified in Section 10.01.
Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by (a) the Borrower, (b) the Administrative Agent and (c) each lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.15.
Refinancing Facility” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness”.
Refinancing Indebtedness” means Indebtedness that is Incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness existing on the Closing Date or Incurred in compliance with the this Agreement (including Indebtedness of the Borrower that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of the Borrower or another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness; provided, however, that:
(1)
(a) such Refinancing Indebtedness has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Capital Stock or Preferred Capital Stock being refunded or refinanced; (b) to the extent such Refinancing Indebtedness refinances Subordinated Indebtedness, Disqualified Capital Stock or Preferred Capital Stock, such Refinancing Indebtedness is Subordinated Indebtedness, Disqualified Capital Stock or Preferred Capital Stock, respectively, and, in the case of Subordinated Indebtedness, is subordinated to the Loans on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being refinanced and (c) to the extent such Refinancing Indebtedness refinances Indebtedness that is secured on a junior lien basis to the Obligations, such Refinancing Indebtedness is subordinated on a junior lien basis to the Obligations on subordination terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being refinanced;
(2)
Refinancing Indebtedness shall not include:







(i)
Indebtedness, Disqualified Capital Stock or Preferred Capital Stock of a Subsidiary of the Borrower that is not the Borrower or a Guarantor that refinances Indebtedness, Disqualified Capital Stock or Preferred Capital Stock of the Borrower or a Guarantor; or
(ii)
Indebtedness, Disqualified Capital Stock or Preferred Capital Stock of the Borrower or a Restricted Subsidiary that refinances Indebtedness, Disqualified Capital Stock or Preferred Capital Stock of an Unrestricted Subsidiary;
(3)
such Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) that is equal to or less than the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding (plus fees and expenses, including any premium and defeasance costs) under the Indebtedness being Refinanced; and
(4)
(a) if such Refinancing Indebtedness is secured, it is secured on the same basis as the Indebtedness being refinanced or by a Lien otherwise permitted by Section 7.01 and (b) such Refinancing Indebtedness is incurred by the Person or Persons who are the obligors on the Indebtedness being refinanced and such new or additional obligors as are permitted under Section 7.03.
Refinancing Indebtedness in respect of any Indebtedness may be Incurred within 180 days after the termination, discharge or repayment of any such Indebtedness.
Refinancing Notes” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
Refinancing Revolving Facility” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
Refinancing Term Facility” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
Refunding Capital Stock” has the meaning specified in Section 7.06(b).
Register” has the meaning set forth in Section 10.07(c).
Registered Equivalent Notes” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
Regulation” has the meaning specified in Section 5.23.
Related Party” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
Related Taxes” means:







(1)    any Taxes, including sales, use, transfer, rental, ad valorem, value added, stamp, property, consumption, franchise, license, capital, registration, business, customs, net worth, gross receipts, excise, occupancy, intangibles or similar Taxes and other similar fees and expenses (other than (x) Taxes measured by income and (y) withholding Taxes), required to be paid (provided such Taxes are in fact paid) by any Parent Entity by virtue of its:
(i)    being organized or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than, directly or indirectly, the Borrower or any of the Borrower’s Subsidiaries) or otherwise maintain its existence or good standing under applicable law;
(ii)    being a holding company parent, directly or indirectly, of the Borrower or any of the Borrower’s Subsidiaries;
(iii)    receiving dividends from or other distributions in respect of the Capital Stock of, directly or indirectly, the Borrower or any of the Borrower’s Subsidiaries; or
(iv)    having made any payment in respect to any of the items for which the Borrower is permitted to make payments to any Parent Entity pursuant to Section 7.06; or
(2)    any Permitted Tax Distribution.
Relevant Jurisdiction” means in relation to a European Borrower or other Foreign Subsidiary: its jurisdiction of incorporation.
Release” means any release, spill, emission, leaking, pumping, pouring, emptying, dumping, injection, deposit, disposal, discharge, dispersal, escape, leaching or migration into the indoor or outdoor environment, including the movement of Contaminants through or in the air, soil, surface water or groundwater.
Remedial Action” means actions required to (i) clean up, remove, treat or in any other way address Contaminants in the indoor or outdoor environment; (ii) prevent, minimize or otherwise address the Release or threat of a Release of Contaminants so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; or (iii) perform pre-response or post-response studies and investigations and post-response monitoring and care or any other studies, reports or investigations relating to Contaminants.
Replacement Term Borrowings” means a borrowing consisting of simultaneous Replacement Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the applicable Lenders.
Replacement Term Loan” has the meaning set forth in Section 10.01.
Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.
Repricing Transaction” has the meaning specified in Section 2.09(d).







Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Loans, a Committed Loan Notice, and (b) with respect to an L/C Credit Extension, an L/C Application.
Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of (a) the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Term Commitments and (c) aggregate unused Revolving Commitments; provided that the unused Term Commitment of, unused Revolving Commitment of, and the portion of the Total Outstandings held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
Required Revolving Lenders” means, as of any date of determination, Revolving Lenders having more than 50% of the sum of (a) the Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s participations (including funded participations) in L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Revolving Commitments. The portion of the Total Revolving Outstandings and the unused Revolving Commitment, as applicable, held or deemed held by a Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders at any time.
Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party or, in the case of the Borrower, any European Borrower or any Foreign Subsidiary, any duly appointed authorized signatory or any director or managing member of such Person and, as to any document delivered on the Closing Date, any secretary or assistant secretary. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party or European Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party or European Borrower, as applicable, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party or European Borrower, as applicable.
Restricted Payment” means to:
(1)    declare or pay any dividend or make any distribution on or in respect of the Borrower’s or any Restricted Subsidiary’s Capital Stock (including, without limitation, any such payment in connection with any merger or consolidation involving the Borrower or any of its Restricted Subsidiaries) except:
(a)    dividends or distributions payable in Capital Stock of the Borrower (other than Disqualified Capital Stock) or in options, warrants or other rights to purchase such Capital Stock; or
(b)    dividends or distributions payable to the Borrower or a Restricted Subsidiary (and, in the case of the Borrower or any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the Borrower or another Restricted Subsidiary on no more than a pro rata basis); or
(2)    purchase, repurchase, redeem, retire or otherwise acquire or retire for value any Capital Stock of the Borrower or any Parent Entity held by Persons other than the Borrower or a Restricted Subsidiary; or







(3)     purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any (x) Subordinated Indebtedness incurred after the Closing Date or (y) Senior Notes (the Indebtedness under each of clauses (x) and (y), “Junior Financing”) (other than (a) any such purchase, repurchase, redemption, defeasance or other acquisition or retirement in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement and (b) payments in respect of Indebtedness Incurred pursuant to Section 7.03(c).
Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary. For the avoidance of doubt, each European Borrower shall at all times constitute a Restricted Subsidiary.
Retained Declined Proceeds” has the meaning specified in Section 2.05(b)(vii).
Revolving Availability Period” means the period from and including the Closing Date to but excluding the Maturity Date of the Revolving Facility or any earlier date on which the Revolving Commitments shall terminate as provided herein.
Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Revolving Lenders.
Revolving Commitment” means, as to any Lender, its commitment to (a) make Revolving Loans and (b) purchase participations in L/C Obligations, in an aggregate principal and/or face amount at any time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the heading “Revolving Commitments” or in the Assignment and Assumption or other agreement pursuant to which such Lender became a party hereto, as such commitment may be changed from time to time pursuant to the terms hereof. The amount of the Aggregate Revolving Commitments on the Closing Date is $250,000,000.
Revolving Commitment Fee” has the meaning specified in Section 2.09(a)(i).
Revolving Facility” means the Revolving Commitments and the Credit Extensions thereunder.
Revolving Lender” means a Lender that has a Revolving Commitment or, if the Revolving Commitments have expired or been terminated, that holds a Revolving Loan or a participation in a Letter of Credit.
Revolving Loan” has the meaning set forth in Section 2.01(b)(i).
Revolving Note” means a promissory note evidencing Revolving Loans made or held by a Revolving Lender, substantially in the form of Exhibit B-2.
Revolving Percentage” means, as to any Revolving Lender as of any date of determination, the percentage which such Lender’s Revolving Commitment then constitutes of the Aggregate Revolving Commitments or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the sum of the aggregate Outstanding Amount of the Revolving Loans of such Lender, plus such Lender’s participations in the Outstanding Amount of all L/C Obligations at such time then constitutes of the Aggregate Revolving Commitments, but subject to adjustment as provided in Section 2.18(a)(iv).







S&P” means Standard & Poor’s Ratings Services or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
Sale and Leaseback Transaction” means any arrangement providing for the leasing by the Borrower or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to a third Person in contemplation of such leasing.
SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Secured Bank Product Obligations” means Indebtedness and other obligations or liabilities of the Borrower or any Restricted Subsidiary owing to a Secured Bank Product Provider in connection with a Bank Product.
Secured Bank Product Provider” means any Person that is providing a Bank Product so long as (i) such Person is a Credit Party on or immediately following the Closing Date and such Bank Product is in effect on the Closing Date, (ii) such Person was a Credit Party when entering into such Bank Product or (iii) such Person was identified in writing on or prior to the Closing Date to the Administrative Agent.
Secured Indebtedness” means any Indebtedness secured by a Lien.
Secured Obligations” has the meaning specified in the Security Agreement.
Secured Parties” means, collectively, the Administrative Agent, the Lenders, the Arrangers, the Secured Bank Product Providers, the Designated Credit Line Providers and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Article 9; provided, that in no event shall “Secured Parties” include any Disqualified Institution.
Securities Act” means the Securities Act of 1933, as amended.
Securitization Repurchase Obligation” means any obligation of a seller of Receivables Assets in a Receivables Facility to repurchase Receivables Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
Security Agreement” means the Security Agreement by and among the Borrower, the Guarantors, the Additional Grantors as defined and named therein and the Collateral Agent, dated as of the Closing Date and substantially in the form of Exhibit F-1, together with each related security agreement supplement executed and delivered pursuant to Section 6.12. For the avoidance of doubt, the European Borrowers shall not be party to the Security Agreement.
Security Agreement Supplement” has the meaning specified in the applicable Security Agreement, if applicable.
Senior Notes” means those 9.500% Senior Unsecured Notes due 2023 issued by the Borrower pursuant to the Senior Notes Indenture.
Senior Notes Indenture” means the Indenture, dated as of January 27, 2016, among the Borrower, the guarantors party thereto from time to time and Wilmington Trust, National Association, as trustee,







governing the Senior Notes, as the same may be amended, supplemented, waived or otherwise modified from time to time.
Separation and Distribution Agreement” means the separation and distribution agreement to be entered into in connection with the Spin-Off, by and among the Borrower, Grace and Grace–Conn, setting forth the mechanics of the Spin-Off, certain organizational matters and other ongoing obligations of the Borrower, Grace and Grace–Conn, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with, or as not prohibited by, the terms hereof.
Series” means each series of Additional Term Commitments and Additional Term Loans made thereunder as designated in and made pursuant to any Joinder Agreement, each series of Additional Revolving Facility Commitments and Additional Revolving Loans made thereunder as designated in and made pursuant to any Joinder Agreement and each series of Extended Term Loans and each series of Extended Revolving Commitments designated and made pursuant to an Extension.
Settlement” means the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.
Settlement Asset” means any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.
Settlement Indebtedness” means any payment or reimbursement obligation in respect of a Settlement Payment.
Settlement Lien” means any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).
Settlement Payment” means the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement.
Settlement Receivable” means any general intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.
Similar Business” means (a) any businesses, services or activities engaged in by the Borrower or any of its Subsidiaries or any Associates on the Closing Date and (b) any businesses, services and activities engaged in by the Borrower or any of its Subsidiaries or any Associates that are related, complementary, incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof.
Solicited Discount Proration” has the meaning specified in Section 2.05(a)(iv)(D)(3).
Solicited Discounted Prepayment Amount” has the meaning specified in Section 2.05(a)(iv)(D)(1).
Solicited Discounted Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Prepayment Offers made pursuant to Section 2.05(a)(iv)(D) substantially in the form of Exhibit L.







Solicited Discounted Prepayment Response Date” has the meaning specified in Section 2.05(a)(iv)(D)(1).
Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets (on a going concern basis) of such Person exceeds its debts and liabilities, subordinated, contingent or otherwise; (b) the present saleable value of the property (on a going concern basis) of such Person is greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business; (c) such Person is able to pay its debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured or otherwise due in the ordinary course of business; and (d) such Person is not engaged in, and is not about to engage in, business contemplated as of such date for which it has unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability, as determined by such Person in good faith.
Sold Entity or Business” has the meaning specified in the definition of Consolidated EBITDA.
SPC” has the meaning specified in Section 10.07(g).
Specified Asset Sale” has the meaning specified in Section 2.05(b)(v).
Specified Debt Issuance” has the meaning specified in Section 2.05(b)(v).
Specified Discount Prepayment Amount” has the meaning specified in Section 2.05(a)(iv)(B)(1).
Specified Discount Prepayment Notice” means a written notice of a Borrower Offer of Specified Discount Prepayment made pursuant to Section 2.05(a)(iv)(B) substantially in the form of Exhibit J.
Specified Discount Prepayment Response” means the irrevocable written response by each Lender, substantially in the form of Exhibit K, to a Specified Discount Prepayment Notice.
Specified Discount Prepayment Response Date” has the meaning specified in Section 2.05(a)(iv)(B)(1).
Specified Discount Proration” has the meaning specified in Section 2.05(a)(iv)(B)(3).
Specified Transaction” means any Investment, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, Subsidiary designation, Incremental Term Loan or Incremental Revolving Commitments that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”; provided that any increase in the Revolving Commitments (including, for this purpose, any Additional Revolving Commitment, Additional Revolving Facility Commitment or Extended Revolving Commitment) above the amount of Revolving Commitments in effect on the Closing Date, for purposes of this “Specified Transaction” definition, shall be deemed to be fully drawn; provided, further, that any such Specified Transaction (other than a Restricted Payment) having an aggregate value of less than $10,000,000 may, at the Borrower’s option, not be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
Spin-Off” has the meaning set forth in the Preliminary Statements.
Spin-Off Effective Date” means the effective date of the Spin-Off.







Spin-Off Outside Date” has the meaning specified in Section 2.05(b)(ix).
Subject Party” has the meaning specified in Section 3.01(o).
Submitted Amount” has the meaning specified in Section 2.05(a)(iv)(C)(1).
Submitted Discount” has the meaning specified in Section 2.05(a)(iv)(C)(1).
Subordinated Indebtedness” means, with respect to any person, any Indebtedness (whether outstanding on the Closing Date or thereafter Incurred) which is expressly subordinated in right of payment to the Obligations pursuant to a written agreement. This Agreement will not treat unsecured Indebtedness as Subordinated Indebtedness merely because it is unsecured.
Subsidiary” of a Person means a corporation, partnership, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
Subsidiary Guarantor” means any Restricted Subsidiary that has become a Guarantor.
Supplier” has the meaning specified in Section 3.01(o).
Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward contracts, future contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, repurchase agreements, reverse repurchase agreements, sell buy back and buy sell back agreements, and securities lending and borrowing agreements or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
Syndication Agent” means Goldman Sachs Bank USA, as syndication agent under this Agreement.
TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
TARGET Day” means any day on which TARGET2 is open for the settlement of payments in Euros.
Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan to a UK Tax Borrower is either (a) a company resident in the United Kingdom for United Kingdom tax purposes; (b) a partnership each member of which is (i) a company so resident in the United Kingdom or (ii) a company not so resident







in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA or (c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges (including VAT) imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Tax Sharing Agreement” means an agreement to be entered into in connection with the Spin-Off, by and among Grace, Grace–Conn and the Borrower, that will generally govern the parties’ respective rights, responsibilities and obligations after the distribution with respect to taxes (including taxes arising in the ordinary course of business and taxes, if any, incurred as a result of any failure of the distribution and certain related transactions to qualify under Sections 355 and certain other relevant provisions of the Code), tax attributes, the preparation and filing of tax returns, tax elections, tax contests, and certain other tax matters, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with, or as not prohibited by, the terms hereof.
Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type (if applicable) and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a)(i).
Term Commitment” means, as to each Lender, its obligation to make a Term Loan to the Borrower in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Term Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Term Commitments on the Closing Date is $275,000,000.
Term Lender” means, at any time, any lender that has a Term Commitment or holds a Term Loan.
Term Loan” means a term loan denominated in Dollars and made by a Lender to the Borrower pursuant to Section 2.01(a)(i).
Term Loan Exposure” means, as to any Lender as of any date of determination, the outstanding principal amount of the Term Loans of such Lender; provided, that at any time prior to the making of the Term Loans, the Term Loan Exposure of any Lender shall be equal to such Lender’s Term Commitment.
Term Loan Facility” means (a) prior to the funding of the Term Loans on the Closing Date, the Term Commitments and (b) thereafter, the Term Loans.
Term Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit B-1 hereto, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Term Loans made by such Lender.
Test Period” means, at any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower ending on or prior to such date.







Total Assets” means the Consolidated total assets of the Borrower and its Restricted Subsidiaries on a Consolidated basis after giving effect to the Transactions, as shown on the most recent Consolidated balance sheet of the Borrower and its Restricted Subsidiaries or, with respect to any determination prior to the first such delivery, the Pro Forma Balance Sheet.
Total Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period (net of Cash on Hand) to (b) Consolidated EBITDA of the Borrower for such Test Period.
Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans and L/C Obligations.
Total Secured Leverage Ratio” means with respect to any Test Period, the ratio of (a) Consolidated Total Debt (other than any portion of Consolidated Total Debt that is unsecured) as of the last day of such Test Period (net of Cash on Hand) to (b) Consolidated EBITDA of the Borrower for such Test Period.
Transaction Agreements” means the Separation and Distribution Agreement, the Transition Services Agreement, the Tax Sharing Agreement, the Employee Matters Agreement, Cross-License Agreement and Grace Transitional License Agreement, in each case, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with, or as not prohibited by, the terms hereof.
Transaction Expenses” means any charges, fees or expenses (including all legal, accounting, advisory, financing-related or other transaction-related charges, fees, costs and expenses and any bonuses or success fee payments and amortization or write-offs of debt issuance costs, deferred financing costs, premiums and prepayment penalties) incurred or paid by the Borrower or any Restricted Subsidiary in connection with the Transactions.
Transactions” means, collectively, (a) the Spin-Off and the other transactions contemplated thereby, including the entering into of the Transaction Agreements, (b) the entering into of this Agreement and the other Loan Documents and the borrowings hereunder, (c) the issuance of the Senior Notes, and (d) the payment of fees and expenses in connection with the foregoing, in each case, as described in the Information Memorandum.
Transition Services Agreement” an agreement to be entered into in connection with the Spin-Off between the Borrower and Grace–Conn and/or their respective Subsidiaries, which will provide for, among other things, the provision of transitional services, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with, or as not prohibited by, the terms hereof.
Treasury Capital Stock” has the meaning specified in Section 7.06(b).
Treaty Lender” shall mean a Lender which (a) is treated as a resident of a Treaty State for the purposes of the relevant Treaty, (b) does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected and (c) fulfills any other conditions under the relevant Treaty which must be satisfied to obtain full exemption from tax imposed by the United Kingdom on payments of interest in respect of a Loan, except that for this purpose it shall be assumed that any necessary procedural formalities (if applicable) are satisfied where the Lender has provided confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with Section 3.01(j).







Treaty State” shall mean a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.
Type” means, with respect to a Loan denominated in Dollars, its character as a Base Rate Loan or Eurocurrency Rate Loan.
UCC” means the Uniform Commercial Code.
UK Borrower” has the meaning specified in the preamble hereto.
UK DB Plan” means the Grace UK Pension Plan.
UK Holdco” means GCP (UK) Holdings Limited, a limited liability company incorporated under the laws of England and Wales with company number 09621665.
UK Holdco Pledge Agreement” means an English law share charge entered into by the Borrower in favor of the Collateral Agent, dated as of the Closing Date and substantially in the form of Exhibit F-2.
UK Non-Bank Lender” shall mean (a) with respect to any Lender that became a party to this Agreement on the day on which this Agreement is entered into, a Lender listed as a UK Non-Bank Lender in Schedule 2.01 and (b) with respect to any Lender that became a party to this Agreement after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Assignment and Assumption which it executes on becoming a party to this Agreement.
UK Qualifying Lender” shall mean:
(i) a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is:
(A)     a Lender (1) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payment apart from section 18A of the CTA; or (2) in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or
(B)    a Lender which is (1) a company resident in the United Kingdom for United Kingdom tax purposes; (2) a partnership each member of which is (a) a company so resident in the United Kingdom or (b) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA or (3) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or
(C)    a Treaty Lender; or







(ii) a Lender which is a building society (as defined for the purposes of section 880 of the ITA) making an advance under a Loan Document.
UK Tax Borrower” means the UK Borrower and any other borrower which becomes a party to this Agreement which is incorporated in the United Kingdom.
Undisclosed Administration” means, in relation to a Lender or its parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender is subject to home jurisdiction if the applicable law requires that such appointment is not to be publicly disclosed.
Uniform Commercial Code” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to the creation or perfection of a security interest in any item or items of Collateral.
United States”, “U.S.” and “US” mean the United States of America.
Unreimbursed Amount” has the meaning set forth in Section 2.03(c)(i).
Unrestricted Subsidiary” means any Subsidiary of the Borrower designated by the board of directors of the Borrower as an Unrestricted Subsidiary pursuant to Section 6.12 subsequent to the date hereof.
Valuation Date” means (i) the date two Business Days prior to the making, continuing or converting of any Revolving Loan or the date of issuance or continuation of any Letter of Credit and (ii) any other date designated by the Administrative Agent or L/C Issuer (subject to the limitations set forth in Section 1.08(b)).
VAT” means: (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in (a), or imposed elsewhere.
VAT Recipient” has the meaning specified in Section 3.01(o).
Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then outstanding principal amount of such Indebtedness.
Weighted Average Yield” means with respect to any loan or note, on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such loan or note on such date and giving effect to any applicable interest rate floor as well as original issue discount and all upfront or similar fees (which shall be deemed to constitute like amounts of original issue discount) payable by Borrower to all of the lenders or note holders generally with respect to such loan or note in the initial primary syndication thereof (with original issue discount being equated to interest based on assumed four-year life to maturity), but excluding customary arrangement, structuring, underwriting, amendment, commitment fees or other fees not paid generally to all lenders of such Loans or payable







to the Arrangers (or their affiliates) or other arranger or agent (or their respective affiliates) in connection with such loans or note (and not payable to lenders or note holders generally).
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.
SECTION 1.02    Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)    The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)    (i)    The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(ii)    Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(iii)    The term “including” is by way of example and not limitation.
(c)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(d)    Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(e)    All references to “knowledge” or “awareness” of any Loan Party or a Restricted Subsidiary thereof means the actual knowledge of a Responsible Officer of the Borrower or any European Borrower.
(f)    The words “asset” and “property” shall be construed as having 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.
(g)    All references to any Person shall be constructed to include such Person’s successors and assigns (subject to any restriction on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof.
SECTION 1.03    Accounting Terms.
(a)    All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, consistently applied, except as otherwise specifically prescribed herein.







(b)    Notwithstanding anything to the contrary herein (unless expressly stated otherwise), for purposes of determining compliance with any test contained in this Agreement with respect to any period during which any Specified Transaction occurs, or for which any Specified Transaction is given Pro Forma Effect, Consolidated EBITDA, the Interest Coverage Ratio, the Fixed Charge Coverage Ratio, the Total Leverage Ratio, the Total Secured Leverage Ratio, the First Lien Leverage Ratio and Total Assets shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis in accordance with Section 1.09.
(c)    Where reference is made to “the Borrower and its Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Borrower other than Restricted Subsidiaries.
(d)    In the event that the Borrower elects to prepare its financial statements in accordance with IFRS and such election results in a change in the method of calculation of financial covenants, standards or terms (collectively, the “Accounting Changes”) in this Agreement, the Borrower and the Administrative Agent agree to enter into good faith negotiations in order to amend such provisions of this Agreement (including the levels applicable herein to any computation of the Total Leverage Ratio, the Total Secured Leverage Ratio and the First Lien Leverage Ratio, the Interest Coverage Ratio, the Fixed Charge Coverage Ratio and Total Assets) so as to reflect equitably the Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be substantially the same after such change as if such change had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed in accordance with GAAP (as determined in good faith by a Responsible Officer of the Borrower) (it being agreed that the reconciliation between GAAP and IFRS used in such determination shall be made available to Lenders) as if such change had not occurred.
SECTION 1.04    Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio or test is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
SECTION 1.05    References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to Organizational Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements, refinancing, replacements, renewals, restructurings and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements, refinancing, replacements, renewals, restructurings and other modifications are not prohibited by any Loan Document and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
SECTION 1.06    Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
SECTION 1.07    Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition







of Interest Period) or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be.
SECTION 1.08    Exchange Rates; Currency Equivalents Generally. (a) The Administrative Agent or Bank of America, N.A. in its capacity as an L/C Issuer, as applicable, shall determine the Exchange Rates as of each Valuation Date to be used for calculating Alternative Currency Equivalent and Dollar Equivalent amounts of Credit Extensions and amounts outstanding hereunder denominated in Alternative Currencies. Such Exchange Rates shall become effective as of such Valuation Date and shall be the Exchange Rates employed in converting any amounts between the applicable currencies until the next Valuation Date to occur. Except for purposes of financial statements delivered by the Borrower hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be the Dollar Equivalent of such currency as so determined by the Administrative Agent (or, where applicable, Bank of America, N.A., in its capacity as L/C Issuer) at the Exchange Rate as of any Valuation Date.
(b)    Notwithstanding the foregoing, in the case of Loans and Letters of Credit denominated in an Alternative Currency, the Administrative Agent and Bank of America, N.A. (in its capacity as L/C Issuer) may at periodic intervals (no more frequently than monthly (for both the Administrative Agent and Bank of America, N.A., not individually), or more frequently during the continuance of an Event of Default) recalculate the aggregate exposure under such Loans and Letters of Credit to account for fluctuations in the Exchange Rate affecting the Alternative Currency in which any such Loans and/or Letters of Credit are denominated. If, as a result of such recalculation, (i) the Total Revolving Outstandings exceed an amount equal to 105% of the Revolving Commitments then in effect, the Borrower will prepay Revolving Loans and, if necessary, Cash Collateralize the outstanding amount of Letters of Credit in the amount necessary to eliminate such excess or (ii) the aggregate L/C Obligations exceeds an amount equal to 105% of the L/C Sublimit, the Borrower will repay Revolving Loans and, if necessary, Cash Collateralize the outstanding amount of Letters of Credit in the amount necessary to eliminate such excess.
(c)    Whenever in this Agreement in connection with a borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 or a unit being rounded upward), as determined by the Administrative Agent or Bank of America, N.A. (in its capacity as L/C Issuer), as the case may be.
(d)    Notwithstanding the foregoing, for purposes of determining compliance with Article 7 (excluding Section 7.14) with respect to any amount of cash on deposit, Indebtedness, Investment, Restricted Payment, Lien or Disposition (each, a “Covenant Transaction”) in a currency other than Dollars, (i) no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred and (ii) such amount will be converted into Dollars based on the relevant Exchange Rate in effect on the date such Covenant Transaction occurs and such basket will be measured at the time such Covenant Transaction occurs.
(e)    For purposes of determining compliance under Section 7.14, the amount of any Indebtedness denominated in a currency other than Dollars will be converted to Dollars based on the average Exchange Rate for such currency for the most recent twelve-month period immediately prior







to the date of determination determined in a manner consistent with that used in calculating Consolidated EBITDA for the applicable period.
(f)    For the avoidance of doubt, in the case of a Loan denominated in an Alternative Currency, except as expressly provided herein, all interest and fees shall accrue and be payable thereon based on the actual amount outstanding in such Alternative Currency (without any translation into the Dollar Equivalent thereof).
(g)    If at any time on or following the Closing Date all of the Participating Member States that had adopted the Euro as their lawful currency on or prior to the Closing Date cease to have the Euro as their lawful national currency unit, then the Borrower, the Administrative Agent, and the Lenders will negotiate in good faith to amend the Loan Documents to (a) follow any generally accepted conventions and market practice with respect to redenomination of obligations originally denominated in Euro and (b) otherwise appropriately reflect the change in currency.
(h)    If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be the Exchange Rate. The obligation of each Loan Party or European Borrower in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from such Loan Party or European Borrower in the Agreement Currency, such Loan Party or European Borrower each agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to such Loan Party or European Borrower (or to any other Person who may be entitled thereto under applicable law).
SECTION 1.09    Pro Forma Calculations.
(a)    Notwithstanding anything to the contrary herein, financial ratios and tests, including the First Lien Leverage Ratio, the Total Leverage Ratio, the Total Secured Leverage Ratio, Total Assets, Consolidated EBITDA, the Fixed Charge Coverage Ratio and the Interest Coverage Ratio shall be calculated in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the contrary in Sections 1.09(b), (c) or (d), (i) when calculating the First Lien Leverage Ratio for purposes of the definition of “Prepayment Percentage” and (ii) determining actual compliance (and not pro forma compliance or compliance on a Pro Forma Basis) with Section 7.14, the events described in this Section 1.09 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower).
(b)    For purposes of calculating any financial ratio or test, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to Section 1.09(d))







that have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this Section 1.09.
(c)    Whenever pro forma effect is to be given to Consolidated EBITDA with respect to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and include, for the avoidance of doubt, the amount of "run-rate" cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be realizable as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions, operating initiatives, operating changes and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, operating initiatives, operating changes and synergies were realized during the entirety of such period) and "run-rate" means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target's compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, in each case, subject to the limitations set forth in and consistent with the definition of Consolidated EBITDA.
(d)    In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to Section 1.09(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e)    If any Indebtedness bears a floating rate of interest and is being given pro forma effect for the purposes of determining the Fixed Charge Coverage Ratio, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed with a Pro Forma Basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower may designate.







SECTION 1.10    Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any L/C Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
SECTION 1.11    Certifications. All certifications to be made hereunder by an officer or representative of a Loan Party or a European Borrower shall be made by such person in his or her capacity solely as an officer or a representative of such Loan Party or European Borrower, as applicable, on such Loan Party’s or European Borrower’s behalf and not in such Person’s individual capacity.
SECTION 1.12    Compliance with Article VII. In the event that any Lien, Investment, Indebtedness (whether at the time of incurrence or upon application of all or a portion of the proceeds thereof), Disposition, Restricted Payment, Affiliate transaction, Contractual Obligation or prepayment of Indebtedness meets the criteria of one or more than one of the categories of transactions then permitted pursuant to any clause of such Sections in Article VII, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses as determined by the Borrower in its sole discretion.
SECTION 1.15    Limited Condition Transactions.    For purposes of (i) determining compliance with any provision in this Agreement which requires the calculation of the Total Secured Leverage Ratio, Fixed Charge Coverage Ratio, Total Leverage Ratio or First Lien Leverage Ratio, (ii) determining compliance with representations, warranties, Defaults or Events of Default or (iii) testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA) (including, in each case with respect to the incurrence of Indebtedness under Section 2.14), in each case, in connection with a Limited Condition Transaction, at the irrevocable option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA Election”), the date of determination of whether any such Limited Condition Transaction is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCA Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and any Limited Condition Financing (and the use of proceeds thereof) and the other transactions to be entered into in connection therewith as if they had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with.  The Borrower shall make the LCA Election on or prior to the LCA Test Date.  For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date (including with respect to the incurrence of any Indebtedness) are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the Person acquired in respect of any Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCA Test Date and prior to the earlier of (1) the date on which such Limited Condition Transaction is consummated or (2) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and any Limited Condition Financing (and the use of proceeds thereof) and other transactions in connection therewith







(but not for purposes of calculating the financial performance covenants set forth in Section 7.14) have been consummated.
Article 2.    

THE COMMITMENTS AND CREDIT EXTENSIONS
SECTION 2.01    The Loans.
(a)    The Term Borrowings.
(i)    Subject to the terms and express conditions set forth herein, each Lender severally agrees to make on the Closing Date a Term Loan to the Borrower in an amount equal to such Lender’s Term Commitment. The Borrower may make only one borrowing under the Term Commitments which shall be on the Closing Date. Each Lender’s Term Commitments shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s Term Commitments on such date.
(ii)    Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Subject to Sections 2.05(b) and 2.07(a), all amounts owed hereunder with respect to the Term Loans shall be paid in full no later than the Maturity Date for the Term Loan Facility.
(b)    The Revolving Borrowings.
(i)    Subject to the terms and express conditions set forth herein, each Revolving Lender severally agrees to make loans to the Borrower or any European Borrower denominated in Dollars or in an Approved Currency in an aggregate amount not to exceed at any time outstanding the amount of such Revolving Lender’s Revolving Commitment (each such loan by any Revolving Lender, a “Revolving Loan” and collectively, the “Revolving Loans”) from time to time, on any Business Day during the Revolving Availability Period; provided that, after giving effect to the making of any Revolving Loans, in no event shall the Total Revolving Outstandings exceed the Revolving Commitments then in effect; and provided further that in no event shall the Total Revolving Outstandings made to the European Borrowers exceed the European Sublimit.
(ii)    Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and express conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under Section 2.05, and reborrow under this Section 2.01(b), in each case without premium or penalty. Revolving Loans denominated in Dollars may be Base Rate Loans or Eurocurrency Rate Loans, and Revolving Loans demoninated in an Approved Currency shall be Eurocurrency Rate Loans, in each case as further provided herein; provided that all Revolving Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Loans of the same Type. Each Lender’s Revolving Commitments shall expire on the Maturity Date for the Revolving Facility, and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
SECTION 2.02    Borrowings, Conversions and Continuations of Loans. (a) Each Term Borrowing, each Revolving Borrowing, each conversion of Term Loans or Revolving Loans from







one Type to the other and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable (except as provided in Section 3.02, Section 3.03 and Section 3.04 herein) written notice to the Administrative Agent. Each such notice must be received by the Administrative Agent (x) with respect to any Borrowing on the Closing Date, not later than 11:00 a.m. on the date that is (i) three (3) Business Days before the Closing Date for any Dollar-denominated Borrowing of Eurocurrency Rate Loans, (ii) four (4) Business Days before the Closing Date for any Borrowing of Eurocurrency Rate Loans denominated in an Alternative Currency or (iii) one (1) Business Day before the Closing Date for any Borrowing of Base Rate Loans, (y) with respect to any Borrowing following the Closing Date, (i) not later than 11:00 a.m. on the date that is three (3) Business Days prior to the requested date of any Dollar-denominated Borrowing of Eurocurrency Rate Loans, (ii) not later than 11:00 a.m. on the date that is four (4) Business Days prior to the requested date of any Borrowing of Eurocurrency Rate Loans denominated in an Alternative Currency or (iii) not later than noon on the date of any Borrowing of Base Rate Loans, and (z) with respect to any continuation or conversion of Loans after the Closing Date, not later than 11:00 a.m. on the date that is three (3) Business Days prior to the requested date of any continuation of Eurocurrency Rate Loans or any conversion of Loans from one Type to the other; provided, however, that if the Borrower wishes to request Eurocurrency Rate Loans having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is available to all of them. Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower whether or not the requested Interest Period is available to all the Lenders. Each notice by the Borrower pursuant to this Section 2.02(a) shall consist of delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Section 2.03(c)(i), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing (and the Class of Borrowing being requested), a conversion of Term Loans or Revolving Loans from one Type to the other or a continuation of Eurocurrency Rate Loans, (ii) in the case of a Revolving Borrowing, the Approved Currency for the requested Borrowing and whether the Borrower or a European Borrower is requesting such Borrowing (and the applicable European Borrower, as the case may be), (iii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iv) the principal amount of Loans to be borrowed, converted or continued, (v) in the case of Loans in Dollars, the Type of Loans to be borrowed or to which existing Term Loans or Revolving Loans are to be converted, (vi) if applicable, the duration of the Interest Period with respect thereto and (vii) the account of the Borrower (or the applicable European Borrower, as applicable) to be credited with the proceeds of such Borrowing. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice with respect to a Borrowing in Dollars or fails to give a timely notice requesting a conversion or continuation with respect to a Borrowing in Dollars, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower fails to give a timely notice requesting a conversion or continuation with respect to a Borrowing in an Alternative Currency, then it will be deemed to have requested a conversion or continuation for an Interest Period of one (1) month. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency







Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period (or fails to give a timely notice requesting a continuation of Eurocurrency Rate Loans), it will be deemed to have specified an Interest Period of one (1) month.
(b)    Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Principal Office not later than 11:00 a.m. on the Business Day specified in the applicable Committed Loan Notice (or 4:00 pm in the case of any Borrowing in Base Rate for which the Committed Loan Notice was delivered on the same day as such Borrowing). Upon satisfaction or waiver of the applicable conditions set forth in Section 4.02 (or, if such Borrowing is the initial Credit Extension, Sections 4.01 and 4.02), the Administrative Agent shall make all funds so received available to the Borrower (or the applicable European Borrower, as applicable) in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to the Administrative Agent by the Borrower.
(c)    Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the Borrower pays the amount due, if any, under Section 3.04 in connection therewith. During the continuance of an Event of Default, the Required Lenders may require that no Loans may be converted to or continued as Eurocurrency Rate Loans.
(d)    The Administrative Agent shall promptly notify the Borrower and the Appropriate Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. The determination of the Adjusted Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Appropriate Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the determination of such change.
(e)    After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than twenty (20) Interest Periods in effect plus up to three (3) additional Interest Periods in respect of each Additional Facility.
(f)    The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
(g)    For the avoidance of doubt, no conversion or continuation of any Loan pursuant to this Section shall affect the currency in which such Loan is denominated prior to any such conversion or continuation and each such Loan shall remain outstanding denominated in the currency originally issued.
SECTION 2.03    Letters of Credit.
(a)    The Letter of Credit Commitments.







(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day from the Closing Date until the L/C Expiration Date, to issue Letters of Credit for the account of the Borrower or any Subsidiary of the Borrower (provided that the Borrower hereby irrevocably agrees to be bound jointly and severally to reimburse the applicable L/C Issuer for amounts drawn on any Letter of Credit issued for the account of any Subsidiary) and to amend, renew or extend Letters of Credit previously issued by it, in accordance with paragraph (b) of this Section, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in such Letters of Credit and any drawings thereunder; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension, and no Revolving Lender shall be obligated to participate in any Letter of Credit, if, as of the date of such L/C Credit Extension, (w)  the Total Revolving Outstandings would exceed the Revolving Commitments then in effect, (x) the sum of the aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Lender’s Revolving Percentage of the Outstanding Amount of all L/C Obligations would exceed such Lender’s Revolving Commitment, (y) the Outstanding Amount of all L/C Obligations would exceed the L/C Sublimit or (z) the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by such L/C Issuer would exceed its L/C Commitment. Letters of Credit shall constitute utilization of the Revolving Commitments. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii)    Reserved.
(iii)    No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit or direct that such L/C Issuer refrain from the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any material restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B)    the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C)    except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $10,000;
(D)    if such Letter of Credit is to be denominated in a currency other than an Approved Currency;
(E)    any Revolving Lender of the applicable Class is at such time a Defaulting Lender, nor shall any L/C Issuer be under any obligation to extend, renew or amend







existing Letters of Credit, unless such L/C Issuer has entered into arrangements, including reallocation of such Lender’s Pro Rata Share of the applicable outstanding L/C Obligations pursuant to Section 2.18(a)(iv) or the delivery of Cash Collateral, with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.18(a)(iv)) with respect to such Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure; or
(F)    such Letter of Credit is not a standby letter of credit or, subject to the ability of such L/C Issuer to issue such a Letter of Credit, a commercial letter of credit.
(iv)    No L/C Issuer shall be under any obligation to amend or extend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment thereto.
(v)    Each Letter of Credit shall expire at or prior to the close of business on the earlier of (A)(1) if a standby Letter of Credit, the date twelve months after the date of issuance of such Letter of Credit (or, in the case of any Auto-Renewal Letter of Credit, twelve months or, in the case of Letters of Credit issued by Bank of America, N.A., eighteen months (or such longer period as may be agreed to by the applicable L/C Issuer) after the then current expiration date of such Letter of Credit) or (2) if a trade or commercial Letter of Credit, the date nine months after the date of issuance of such Letter of Credit and (B) the L/C Expiration Date.
(vi)    The aggregate L/C Commitments of all the L/C Issuers shall be less than or equal to the L/C Sublimit at all times.
(b)    Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of an L/C Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such L/C Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least three (3) Business Days (or such shorter period as such L/C Issuer and the Administrative Agent may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such L/C Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof and the Approved Currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the applicable L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); and (3) the nature of the proposed amendment. Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any L/C Documents, as such L/C Issuer or the Administrative Agent may reasonably require.







(ii)    Promptly after receipt of any L/C Application, the applicable L/C Issuer will confirm with the Administrative Agent that the Administrative Agent has received a copy of such L/C Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by such L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions set forth herein, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a participation in such Letter of Credit in an amount equal to such Lender’s Revolving Percentage of the amount of such Letter of Credit.
(iii)    If the Borrower so requests in any applicable L/C Application, the applicable L/C Issuer shall agree to issue a standby Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit shall permit such L/C Issuer to prevent any such renewal at least once in each twelve-month period (or such longer period as may be reasonably agreed to by the applicable L/C Issuer) (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such twelve-month period to be mutually agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Revolving Lenders of the applicable Class shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the L/C Expiration Date; provided, however, that such L/C Issuer shall not (x) permit any such renewal if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise) or (B) it has received notice on or before the day that is seven Business Days before the Nonrenewal Notice Date from the Administrative Agent that the Required Revolving Lenders have elected not to permit such renewal or (y) be obligated to permit such renewal if it has received notice on or before the day that is seven Business Days before the Nonrenewal Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions set forth in Section 4.02 is not then satisfied or waived, and in each such case directing such L/C Issuer not to permit such renewal.
(iv)    Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c)    Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof, and such L/C Issuer shall, within a reasonable time following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. If such L/C Issuer notifies the Borrower in writing of any payment by such L/C Issuer under a Letter of Credit prior to 3:00 p.m. on the date of such payment, the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing on the next succeeding Business Day; provided that if such notice is not







provided to the Borrower prior to 3:00 p.m. on such payment date, then the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing on the second succeeding Business Day, and such extension of time shall be reflected in computing fees in respect of such Letter of Credit. If the Borrower fails to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of such payment date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”) and the amount of such Lender’s Revolving Percentage thereof. In such event, the Borrower shall be deemed to have requested a Revolving Borrowing of Base Rate Loans (in the case of any Unreimbursed Amount in respect of a Letter of Credit denominated in Dollars) or Eurocurrency Rate Loans with a period of one month (in the case of any Unreimbursed Amount in respect of a Letter of Credit denominated in Dollars or in an Alternative Currency) to be disbursed on such payment date in an amount equal to such Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans or Eurocurrency Rate Loans, as applicable. Any notice given by an L/C Issuer or the Administrative Agent pursuant to this clause (i) must be in writing.
(ii)    Each Revolving Lender of the applicable Class (including each Revolving Lender acting as an L/C Issuer) shall upon any notice pursuant to paragraph (c)(i) of this Section make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer at the Administrative Agent’s Principal Office in an amount equal to its Revolving Percentage of the relevant Unreimbursed Amount not later than 3:00 p.m. on the Business Day specified in such notice by the Administrative Agent (or, in the case of a Letter of Credit denominated in an Alternative Currency, not later than 11:00 a.m. on the date that is three Business Days following receipt of such notice), whereupon, subject to the provisions of paragraph (c)(iii) of this Section, each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan (or, in the case of any Unreimbursed Amount in respect of a Letter of Credit denominated in Dollars or in an Alternative Currency, a Eurocurrency Rate Roan with an interest period of one month) to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in accordance with the instructions provided to the Administrative Agent by such L/C Issuer (which instructions may include standing payment instructions, which may be updated from time to time by such L/C Issuer, provided that, unless the Administrative Agent shall otherwise agree, any such update shall not take effect until the Business Day immediately following the date on which such update is provided to the Administrative Agent).
(iii)    With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing because the conditions set forth in Section 4.02 are not satisfied or waived or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on written demand (together with interest) and shall bear interest at the Default Rate then applicable to Base Rate Loans or Eurocurrency Rate Loans with an interest period of one month under the Revolving Facility, as applicable. In such event, each Revolving Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to paragraph (c)(i) of this Section shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section.
(iv)    Until each Revolving Lender funds its Revolving Loan or L/C Advance to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest







in respect of such Lender’s Revolving Percentage of such amount shall be solely for the account of such L/C Issuer.
(v)    Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this paragraph (c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Lender’s obligation to make Revolving Loans pursuant to this paragraph (c) is subject to the satisfaction or waiver of the conditions set forth in Section 4.02. No such funding of a participation in any Letter of Credit shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under such Letter of Credit, together with interest as provided herein.
(vi)    If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this paragraph (c) by the time specified in paragraph (c)(ii), then, without limiting the other provisions of this Agreement, such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d)    Repayment of Participations. (i) If, at any time after an L/C Issuer has made payment in respect of any drawing under any Letter of Credit issued by it and has received from any Revolving Lender its L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Revolving Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in like funds as received by the Administrative Agent.
(ii)    If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Revolving Lender of the applicable Class shall pay to the Administrative Agent for the account of such L/C Issuer its Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender at a rate per annum equal to the Federal Funds Effective Rate from







time to time in effect. The obligations of the Revolving Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.
(e)    Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i)    any lack of validity or enforceability of such Letter of Credit or any term or provision thereof, any Loan Document, or any other agreement or instrument relating thereto;
(ii)    the existence of any claim, counterclaim, setoff, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)    any draft, demand, certificate or other document presented under such 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; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv)    any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not comply strictly with the terms of such Letter of Credit; or any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including arising in connection with any proceeding under any Debtor Relief Law;
(v)    any exchange, release or nonperfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of Credit; or
(vi)    any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower (other than the defense of payment or performance);
provided that the foregoing in clauses (i) through (vi) shall not excuse any L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are caused by such L/C Issuer’s (or its Related Parties’) gross negligence, bad faith, material breach or willful misconduct, in each case, as determined in a final and non-appealable judgment by a court of competent jurisdiction when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.
(f)    Role of L/C Issuer. Each Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter







of Credit) or to ascertain or inquire as to the validity or accuracy of any document or the authority of the Person executing or delivering any document. None of the applicable L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of such L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Required Lenders; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct as finally determined by a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or L/C Application. The Borrower hereby assumes all risks of the acts of omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the applicable L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of such L/C Issuer shall be liable or responsible for any of the matters described in Section 2.03(e); provided that, notwithstanding anything in such clauses to the contrary, the Borrower may have a claim against such L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct (as opposed to indirect, special, punitive, consequential or exemplary) damages suffered by the Borrower which a court of competent jurisdiction determines in a final nonappealable judgment were caused by such L/C Issuer’s (or its Related Parties’) gross negligence, bad faith, material breach or willful misconduct or such L/C Issuer’s (or its Related Parties’) willful or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the applicable L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g)    Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each Letter of Credit.
(h)    Conflict with L/C Application. In the event of any conflict between the terms of this Agreement and the terms of any L/C Application, the terms hereof shall control.
(i)    Reporting. Not later than the third Business Day following the last day of each month (or at such other intervals as the Administrative Agent and the applicable L/C Issuer shall agree), each L/C Issuer shall provide to the Administrative Agent a schedule of the Letters of Credit issued by it, in form and substance reasonably satisfactory to the Administrative Agent, showing the date of issuance of each Letter of Credit, the account party, the original face amount (if any), the expiration date, and the reference number of any Letter of Credit outstanding at any time during such month, and showing the aggregate amount (if any) payable by the Borrower to such L/C Issuer during such month.
(j)    Provisions Related to Extended Revolving Commitments. If the L/C Expiration Date in respect of any Expiring Credit Commitment occurs prior to the expiry date of any Letter of Credit, then (i) if one or more other Non-Expiring Credit Commitments in respect of which the L/C Expiration Date shall not have so occurred are then in effect, such Letters of Credit shall, to the extent such Letters of Credit could have been issued under such other tranches, automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Lenders to purchase participations therein







and to make Revolving Loans and payments in respect thereof pursuant to Sections 2.03(c) and (d)) under (and ratably participated in by Lenders pursuant to) the Non-Expiring Credit Commitments up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Non-Expiring Credit Commitments at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit. At all times following the Maturity Date of any Expiring Credit Commitment, the sublimit for Letters of Credit shall in no event exceed the aggregate principal amount of Non-Expiring Credit Commitments then outstanding.
SECTION 2.04    Reserved.
SECTION 2.05    Prepayments. (a) Optional. (i) Each of the Borrower and any European Borrower (as applicable) may, upon delivery of a Prepayment Notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans, in each case, in whole or in part without premium or penalty (but subject to Section 2.09(d)); provided that (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans or (2) one Business Day prior to any date of prepayment of Base Rate Loans; (B) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof then outstanding and (C) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such Prepayment Notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower (or any European Borrower, if applicable), unless rescinded as set forth in clause (iii) hereof, the Borrower (or any European Borrower, if applicable) shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.04. Each prepayment of any Loans pursuant to this Section 2.05(a) shall be applied to such Loans and in such order of maturity of principal installments as the Borrower (or any European Borrower, if applicable) may direct in its sole discretion; provided that, in the event the Borrower (or any European Borrower, if applicable) fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied, first, to repay outstanding Revolving Loans on a pro rata basis across Classes and pro rata among Lenders within each Class until paid in full, and second, to prepay the Term Loans on a pro rata basis across Classes and pro rata among Lenders within each Class in accordance with the respective outstanding principal amounts thereof (which prepayments shall be applied to the scheduled installments of principal in direct order of maturity). Each prepayment made by the Borrower or any European Borrower shall be paid to the Administrative Agent for the account of (and to be promptly disbursed to) the Lenders in accordance with their respective Pro Rata Shares.
(ii)    Reserved.
(iii)    Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.05(a)(i) if such prepayment would have resulted from a refinancing of all or a portion of the Term Loan Facility or Revolving Facility or the occurrence of any other event, which refinancing or event shall not be consummated or shall otherwise be delayed.







(iv)    Notwithstanding anything in this Agreement (including but not limited to Sections 2.07 and 2.13 (which provisions shall not be applicable to this Section 2.05(a)(iv))) or in any other Loan Document to the contrary, so long as a Responsible Officer of the Borrower has delivered a certificate confirming that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) no proceeds of Revolving Loans are used therefor, the Loan Parties and their Subsidiaries may prepay the outstanding Term Loans (which shall, for the avoidance of doubt, be automatically and permanently canceled immediately upon acquisition by the Borrower), or the Loan Parties or any of their Subsidiaries may purchase such outstanding Term Loans and immediately cancel them, on the following basis:
(A)    Any Loan Party or any of its Subsidiaries shall have the right to make a voluntary prepayment of Loans at a discount to par pursuant to a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers (any such prepayment, the “Discounted Loan Prepayment”), in each case made in accordance with this Section 2.05(a)(iv).
(B)    (1) Any Loan Party or any of its Subsidiaries may from time to time offer to make a Discounted Loan Prepayment by providing the Auction Agent five (5) Business Days’ notice substantially in the form of a Specified Discount Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of the Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual Class basis, (II) any such offer shall specify the aggregate principal amount offered to be prepaid (the “Specified Discount Prepayment Amount”) with respect to each applicable Class, the Class or Classes of Loans subject to such offer and the specific percentage discount to par (the “Specified Discount”) of such Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different Classes of Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) subject to subsection (K) below, each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended upon notice by the applicable Loan Party or the Subsidiary to the Auction Agent) (the “Specified Discount Prepayment Response Date”).
(2)    Each Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its applicable then outstanding Loans at the Specified Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”), the amount and the Classes of such Lender’s Loans to be prepaid at such offered discount. Each acceptance of a Discounted Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response







Date shall be deemed to have declined to accept the applicable Borrower Offer of Specified Discount Prepayment.
(3)    If there is at least one Discount Prepayment Accepting Lender, the relevant Loan Party or Subsidiary will make a prepayment of outstanding Loans pursuant to this paragraph (B) to each Discount Prepayment Accepting Lender on the Discounted Prepayment Effective Date in accordance with the respective outstanding amount and Classes of Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to subsection (2) above; provided that, if the aggregate principal amount of Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent (with the consent of such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount Proration”). The Auction Agent shall promptly, and in any case within three (3) Business Days following the Specified Discount Prepayment Response Date, notify (I) the relevant Loan Party or Subsidiary of the respective Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Loan Prepayment and the Classes to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, and the aggregate principal amount and the Classes of Loans to be prepaid at the Specified Discount on such date and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, Class and Type of Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Loan Party and such Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Loan Party or Subsidiary shall be due and payable by such Loan Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (K) below).
(C)    (1) Any Loan Party or any of its Subsidiaries may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with 5 Business Days’ notice in the form of a Discount Range Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of such Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual Class basis, (II) any such notice shall specify the maximum aggregate principal amount of the relevant Loans (the “Discount Range Prepayment Amount”), the Class or Classes of Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Loans with respect to each relevant Class of Loans willing to be prepaid by such Loan Party or such Subsidiary (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different Classes of Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess







thereof and (IV) subject to subsection (K) below, each such solicitation by any Loan Party or any of its Subsidiaries shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended by notice from the Loan Party or Subsidiary to the Auction Agent) (the “Discount Range Prepayment Response Date”). Each Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify one or more (but no more than three for any Lender) discounts to par within the Discount Range (the “Submitted Discount”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Loans of the applicable Class or Classes and the maximum aggregate principal amount and Classes of such Lender’s Loans (the “Submitted Amount”) such Lender is willing to have prepaid at the Submitted Discount. Any Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Loan Prepayment of any of its Loans at any discount to their par value within the Discount Range.
(2)    The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (with the consent of such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Loans to be prepaid at such Applicable Discount in accordance with this subsection (C). The relevant Loan Party or Subsidiary agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Auction Agent within the Discount Range by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection (3)) at the Applicable Discount (each such Lender, a “Participating Lender”).
(3)    Subject to subsection (K) below, if there is at least one Participating Lender, the relevant Loan Party or Subsidiary will prepay the respective outstanding Loans of each Participating Lender on the Discounted Prepayment Effective Date in the aggregate principal amount and of the Classes specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range







Prepayment Amount, prepayment of the principal amount of the relevant Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (with the consent of such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Discount Range Proration”). The Auction Agent shall promptly, and in any case within five (5) Business Days following the Discount Range Prepayment Response Date, notify (I) the relevant Loan Party or Subsidiary of the respective Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Loan Prepayment and the Classes to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and Classes of Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and Classes of such Lender to be prepaid at the Applicable Discount on such date, and (IV) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the relevant Loan Party or Subsidiary and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Loan Party or Subsidiary shall be due and payable by such Loan Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (K) below).
(D)    (1) Any Loan Party or any of its Subsidiaries may from time to time solicit offers for discounted prepayments by providing the Auction Agent with 5 Business Days’ notice in substantially the form of a Solicited Discounted Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of such Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual Class basis, (II) any such notice shall specify the maximum aggregate amount of the Loans (the “Solicited Discounted Prepayment Amount”) and the Class or Classes of Loans the Loan Party or Subsidiary is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different Classes of Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) subject to subsection (K) below, each such solicitation by any Loan Party or any of its Subsidiaries shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer in the form of Exhibit N to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended upon notice from the Loan Party or Subsidiary to the Auction Agent) (the “Solicited Discounted Prepayment Response Date”). Each Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance







Date, and (z) specify either one or more (but no more than three) discounts to par (the “Offered Discount”) at which such Lender is willing to allow prepayment of its then outstanding Loan and the maximum aggregate principal amount and Classes of such Loans (the “Offered Amount”) such Lender is willing to have prepaid at the Offered Discount. Any Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Loans at any discount.
(2)    The Auction Agent shall promptly provide the relevant Loan Party or Subsidiary with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. Such Loan Party or such Subsidiary shall review all such Solicited Discounted Prepayment Offers and select the largest of the Offered Discounts specified by the relevant responding Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Loan Party or Subsidiary in its sole discretion (the “Acceptable Discount”), if any. If the Loan Party or Subsidiary elects, in its sole discretion, to accept any Offered Discount as the Acceptable Discount, in no event later than by the third Business Day after the date of receipt by such Loan Party or such Subsidiary from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (2) (the “Acceptance Date”), the Loan Party or Subsidiary may submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice in the form of Exhibit M from the Loan Party or Subsidiary by the Acceptance Date, such Loan Party or such Subsidiary shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
(3)    Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three (3) Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination Date”), the Auction Agent will determine (with the consent of such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the Classes of Loans (the “Acceptable Prepayment Amount”) to be prepaid by the relevant Loan Party or Subsidiary at the Acceptable Discount in accordance with this Section 2.05(a)(iv)(D). If the Loan Party or Subsidiary elects to accept any Acceptable Discount, then the Loan Party or Subsidiary agrees to accept all Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Offered Amount (subject to any required pro-rata reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “Qualifying Lender”). The Loan Party or Subsidiary may prepay outstanding Loans pursuant to this subsection (D) to each Qualifying Lender in the aggregate principal amount and of the Classes specified in such Lender’s Solicited







Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Solicited Discount Proration”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (I) the relevant Loan Party or Subsidiary of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Loan Prepayment and the Classes to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Loans and the Classes to be prepaid at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the Classes of such Lender to be prepaid at the Acceptable Discount on such date, and (IV) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to such Loan Party or such Subsidiary and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to such Loan Party or such Subsidiary shall be due and payable by such Loan Party or such Subsidiary on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (K) below).
(E)    In connection with any Discounted Loan Prepayment, the Loan Parties and the Lenders acknowledge and agree that the Auction Agent may require as a condition to any Discounted Loan Prepayment, the payment of customary and documented fees and out-of-pocket expenses from a Loan Party or Subsidiary in connection therewith.
(F)    If any Loan is prepaid in accordance with paragraphs (B) through (D) above, a Loan Party or Subsidiary shall prepay such Loans on the Discounted Prepayment Effective Date without premium or penalty. The relevant Loan Party or Subsidiary shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s Principal Office in immediately available funds not later than 1:00 p.m. on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the relevant Class of Loans on a pro rata basis across such installments. The Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Loans pursuant to this Section 2.05(a)(iv) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, and shall be applied to the relevant Loans of such Lenders in accordance with their respective Pro Rata Share. The aggregate principal amount of the Classes and installments of the relevant Loans outstanding shall be deemed reduced by the full par







value of the aggregate principal amount of the Class of Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Loan Prepayment. In connection with each prepayment pursuant to this Section 2.05(a)(iv), each relevant Loan Party, each European Borrower and Lender shall render customary “big boy” letters to each other and the Auction Agent regarding Excluded Information.
(G)    To the extent not expressly provided for herein, each Discounted Loan Prepayment (which for the avoidance of doubt, shall not include any open market purchases of Loans or Commitments otherwise permitted by the terms hereof) shall be consummated pursuant to procedures consistent with the provisions in this Section 2.05(a)(iv) or as otherwise established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Borrower.
(H)    Notwithstanding anything in any Loan Document to the contrary, for purposes of this Section 2.05(a)(iv), to the extent the Administrative Agent is the Auction Agent, each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(I)    Each of the Loan Parties, the European Borrowers and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this Section 2.05(a)(iv) by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Loan Prepayment provided for in this Section 2.05(a)(iv) as well as activities of the Auction Agent.
(J)    In connection with any Term Loans prepaid and cancelled pursuant to this Section 2.05(a)(iv), the Administrative Agent is authorized to make appropriate entries in the Register to reflect any such cancellation.
(K)    Each Loan Party and any of its Subsidiaries shall have the right, by written notice to the Auction Agent, to revoke or modify its offer to make a Discounted Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date.
(L)    Any failure by such Loan Party or such Subsidiary to make any prepayment to a Lender, pursuant to this Section 2.05(a)(iv) shall not constitute a Default or Event of Default under Section 8.01 or otherwise.
(M)    To the extent the Auction Agent is required to deliver notices or communicate such other information to the Lenders pursuant to this Section 2.05(a)(iv), the Auction Agent will work with the Administrative Agent (and the Administrative Agent







will cooperate with the Auction Agent) in order to procure the delivery of such notices and/or the communication of such information to the applicable Lenders.
(N)    Nothing in this Section 2.05(a)(iv) shall require the Loan Parties or any of their Subsidiaries to undertake any Discounted Loan Prepayment.
(b)    Mandatory.
(i)    Excess Cash Flow. Within five (5) Business Days after financial statements are required to have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate is required to have been delivered pursuant to Section 6.02(b), commencing with the fiscal year ended December 31, 2017, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans, in accordance with Section 2.05(b)(vi), in an amount equal to (A) the Prepayment Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus (B) the sum of (1) the amount of any voluntary prepayments of Term Loans made pursuant to Section 2.05(a) during such fiscal year or after fiscal year-end but prior to the time of such prepayment pursuant to this Section 2.05(b)(i) (other than prepayments of Term Loans financed by incurring other long-term Indebtedness (other than revolving loans)), in the case of prepayments pursuant to Section 2.05(a)(iv), with credit given for the actual amount of cash payment, and (2) solely to the extent the amount of the Revolving Commitments are permanently reduced pursuant to Section 2.06 in connection therewith (and solely to the extent of the amount of such reduction), the amount of any voluntary prepayments of Revolving Loans made pursuant to Section 2.05(a) during such fiscal year or after fiscal year-end but prior to the time of such prepayment pursuant to this Section 2.05(b)(i); provided that any payments made after fiscal year-end which reduce the prepayment pursuant to this Section 2.05(b)(i) shall not reduce any required prepayments pursuant to this Section 2.05(b)(i) in any subsequent fiscal year.
(ii)    Disposition or Casualty.
(A)    If (x) the Borrower or any Restricted Subsidiary consummates any Asset Disposition or Disposes of any other property that would not constitute an “Asset Disposition” under clauses (15), (20) and (23) of such definition or (y) any Casualty Event occurs, which results in the receipt by the Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrower shall cause to be prepaid on or prior to the date which is five (5) Business Days after the date of the receipt of such Net Cash Proceeds an aggregate principal amount of Term Loans, in accordance with Section 2.05(b)(vi), in an amount equal to 100% of all Net Cash Proceeds received; provided, however, that a ratable portion of the Net Cash Proceeds may be applied to prepay or offer to purchase any first lien senior notes that are Refinancing Notes or Additional Notes if required under the terms of the documentation governing such Refinancing Notes or Additional Notes (determined on the basis of the aggregate outstanding principal amount of the Term Loans, Refinancing Notes and Additional Notes outstanding at such time); provided, further, that to the extent the holders of Refinancing Notes or Additional Notes decline to have such Indebtedness prepaid or purchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(B)    With respect to any Net Cash Proceeds received with respect to any Asset Disposition or other Disposition specifically included in the application of Section 2.05(b)(ii)(A) or any Casualty Event, at the option of the Borrower, the Borrower or its







Restricted Subsidiaries may reinvest or cause to be reinvested all or any portion of such Net Cash Proceeds received by it in assets useful for their business and permitted acquisitions within 365 days following the later of (x) receipt of such Net Cash Proceeds and (y) the date of such Disposition or Casualty Event (or, if committed to be reinvested within such 365-day period, so reinvested within 180 days thereafter); provided that if any Net Cash Proceeds are not so reinvested within the applicable time periods set forth above in this Section 2.05(b)(ii)(B), an amount equal to any such Net Cash Proceeds shall be promptly applied to the prepayment of the Loans as set forth in this Section 2.05.
(iii)    Debt Proceeds. If the Borrower or any Restricted Subsidiary incurs or issues (A) any Indebtedness not permitted to be incurred or issued pursuant to Section 7.03 or (B) any Refinancing Notes or Refinancing Term Facility, the Borrower shall cause to be prepaid an aggregate amount of Term Loans, in accordance with Section 2.05(b)(vi), in an amount equal to 100% of all Net Cash Proceeds received therefrom on the date which is three (3) Business Days after the date of receipt of such Net Cash Proceeds.
(iv)    Revolving Loans. If for any reason the aggregate Outstanding Amount of the Revolving Loans and L/C Obligations at any time exceeds the Aggregate Revolving Commitments then in effect, the Borrower (or any European Borrower, if applicable) shall promptly prepay the Revolving Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower or any European Borrower, as applicable, shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless after the prepayment in full of the Revolving Loans such aggregate Outstanding Amount exceeds such Aggregate Revolving Commitments then in effect.
(v)    Notwithstanding any other provisions of this Section 2.05(b), to the extent that any of Excess Cash Flow or all or any portion of the Net Cash Proceeds of any asset sale or other Disposition or any Casualty Event or Debt Issuance by a Restricted Subsidiary giving rise to mandatory prepayment pursuant to Section 2.05(b)(ii)(A) or Section 2.05(b)(ii)(B) (each such Disposition and Casualty Event, a “Specified Asset Sale”) or Section 2.05(b)(iii) (each such Debt Issuance, a “Specified Debt Issuance”) (A) are prohibited or delayed by applicable local Law or prohibited by material constituent document restrictions (including as a result of minority ownership) from being repatriated to the jurisdiction of organization of the Borrower or (B) with respect to which the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow or Net Cash Proceeds of any Specified Asset Sale or Specified Debt Issuance to the jurisdiction of organization of the Borrower could reasonably be expected to have an adverse tax consequence to the Borrower and its Restricted Subsidiaries (including pursuant to Section 956 of the Code), then, solely to the extent such result is not directly attributable to actions taken by the Borrower or any of its Subsidiaries with the intent of avoiding or reducing any prepayment otherwise required under this Section 2.05(b), (1) an amount equal to the portion of such Excess Cash Flow or Net Cash Proceeds which would be so affected will not be required to be applied to repay Loans at the times provided in this Section 2.05(b) but may be retained by the applicable Restricted Subsidiary, (2) the Borrower agrees to use and to cause the applicable Restricted Subsidiary to use all reasonable efforts to overcome or eliminate any such restrictions and/or to minimize any such adverse tax consequences to make the relevant prepayment (net of an amount equal to the additional Distribution Related Taxes that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of repatriation, whether or not a repatriation actually occurs) within one year following the date on which the respective prepayment would otherwise have been required and (3) if within one year







following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Cash Proceeds and Excess Cash Flow is permissible under the applicable local law or applicable constituent documents or if such adverse tax consequence no longer exists (even if such cash is actually not repatriated), an amount equal to the amount of Net Cash Proceeds or Excess Cash Flow otherwise subject to such restrictions, that could be repatriated will be promptly (and in any event not later than five (5) Business Days after such repatriation is or such repatriation could be accomplished) applied (net of an amount equal to the additional Distribution Related Taxes that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of repatriation, whether or not a repatriation actually occurs) to the repayment of the Loans pursuant to this Section 2.05(b). The non-application of any prepayment amounts as a consequence of the foregoing provisions (the aggregate sum of any such amounts related to Excess Cash Flow, “Non-Repatriated Amounts”) will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(vi)    Any prepayment of any Term Loans pursuant to this Section 2.05(b) shall be applied to repay Term Loans of each then outstanding Class on a pro rata basis unless otherwise agreed by any Term Lenders receiving less than their Pro Rata Share and the Borrower. Any prepayment of any Class of Term Loans pursuant to this Section 2.05(b) shall be applied in direct order of maturities and each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Share (prior to giving effect to any rejection by any Lender of any such prepayment pursuant to clause (vii) below), subject to this clause (vi) and clause (vii) of this Section 2.05(b).
(vii)    The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i), (ii) and (iii) of this Section 2.05(b) at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of any such prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Any Term Lender (a “Declining Lender”, and any Lender which is not a Declining Lender, an “Accepting Lender”) may elect, by delivering not less than two (2) Business Days prior to the proposed prepayment date, a written notice that any mandatory prepayment of a Term Loan otherwise required to be made with respect to the Term Loans held by such Lender pursuant to clauses (i) and (ii) (but not clause (iii)) of this Section 2.05(b) not be made, in which event the portion of such prepayment which would otherwise have been applied to the Term Loans of the Declining Lenders shall instead be retained by the Borrower (“Retained Declined Proceeds”).
(viii)    Funding Losses, Etc. All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a Eurocurrency Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan, as the case may be, pursuant to Section 3.04. Notwithstanding any of the other provisions of Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower (or any European Borrower, if applicable) may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized







(without any further action by or notice to or from the Borrower, any other Loan Party or any European Borrower) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower, any other Loan Party or any European Borrower) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b). Such deposit shall be deemed to be a prepayment of such Loans by the Borrower for all purposes under this Agreement.
(ix)    Failure of Spin-Off. If the Spin-Off Effective Date has not occurred on or prior to July 2, 2016, which date is the 150th day after the Closing Date (such date, the “Spin-Off Outside Date”), then on the such date, the Borrower (and the European Borrowers, as applicable) shall repay the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document, and the Borrower shall Cash Collateralize the L/C Obligations or make other arrangements reasonably acceptable to the Issuing Lenders with respect to any outstanding Letters of Credit.
SECTION 2.06    Termination or Reduction of Commitments. (a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate the unused portion of the Revolving Commitments, or from time to time reduce the unused Revolving Commitments or the L/C Sublimit; provided that (a) each such notice shall be in writing and must be received by the Administrative Agent at least three Business Days prior to the effective date of such termination or reduction, and shall be irrevocable (provided that a notice of termination of the Revolving Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities or other events, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied), (b) any such partial reduction shall be in an aggregate amount of $5,000,000 or a larger multiple of $1,000,000 and (c) the Borrower shall not terminate or reduce (i) the Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments or (ii) the L/C Sublimit if, after giving effect thereto, the Outstanding Amount of all L/C Obligations would exceed the L/C Sublimit; provided, further, that, upon any such partial reduction of the L/C Sublimit, unless the Borrower, the Administrative Agent and the applicable L/C Issuer otherwise agree, the commitment of each L/C Issuer to issue Letters of Credit will be reduced proportionately by the amount of such reduction. For avoidance of doubt, upon termination of the Revolving Commitments in full, the L/C Sublimit shall automatically terminate. Unless previously terminated, the Revolving Commitments shall automatically terminate on the date specified in clause (a) of the definition of “Maturity Date”. Furthermore, subject to clause (a) and clause (c) of the first sentence of this Section 2.06(a), the Borrower may terminate in whole the Revolving Commitment of any Defaulting Lender.
(b)    Mandatory.
(i)    The Term Commitment of each Lender shall be automatically and permanently reduced to $0 at 5:00 p.m. on the Closing Date upon the funding of the Term Loans.
(ii)    The Revolving Commitment of each Revolving Lender shall be automatically and permanently reduced to $0 on the Maturity Date for the Revolving Facility (or, if the Spin-Off Effective Date has not occurred on or prior to the Spin-Off Outside Date, on the Spin-Off Outside Date).







(c)    Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Appropriate Lenders of any termination or reduction of unused portions of the L/C Sublimit or the unused Commitments of any Class under this Section 2.06. Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments are reduced; provided, however, that any termination in whole of the Revolving Commitment of a Defaulting Lender pursuant to the last sentence of Section 2.06(a) shall not result in a reduction of any other Lender’s Revolving Commitments. Subject to Section 2.18(a)(iii), all commitment fees accrued until the effective date of any termination of the Commitments of any Class shall be paid to the Administrative Agent (for distribution to the Appropriate Lenders) on the effective date of such termination.
SECTION 2.07    Repayment of Loans. (a) Term Loans.
(i)    The Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders the aggregate outstanding principal amount of the Term Loans (x) in quarterly installments in an amount equal to 0.25% of the sum of the original principal amount of the Term Loans made on the Closing Date, payable on the last Business Day of each March, June, September and December, commencing on June 30, 2016, and (y) the balance on the Maturity Date of the Term Loan Facility, which amount, in each case, shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05; provided, however, that the final principal installment in any event shall be in an amount equal to the aggregate principal amount of the Term Loans outstanding on such date.
(b)    Revolving Loans.
(i)    The Borrower and the European Borrowers, as applicable, shall repay to the Administrative Agent for the ratable account of the Revolving Lenders on the Maturity Date for the Revolving Facility the aggregate principal amount of all of the Revolving Loans outstanding on such date.
(c)    Reserved.
(d)    Additional Term Loans, Extended Term Loans and Extended Revolving Loans. The Borrower (or any European Borrower, if applicable) shall repay the aggregate amount of any Additional Term Loans, Extended Term Loans and Extended Revolving Loans to the Administrative Agent in accordance with a repayment schedule to be agreed by the Borrower (or any European Borrower, if applicable) and the relevant Additional Term Lenders, Extended Term Lenders or Extended Revolving Lenders, as applicable, and set forth in the applicable Joinder Agreement, Extension Amendment or other applicable amendment documentation.
SECTION 2.08    Interest. (a) (i) Each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Applicable Rate with respect to Eurocurrency Rate Loans; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Applicable Rate with respect to Base Rate Loans.
(b)    While any payment Event of Default exists, each of the Borrower and the European Borrowers shall pay interest on the principal amount of all of its overdue outstanding Obligations incurred hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest







extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon written demand.
(c)    Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of the Loans; provided, however, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
SECTION 2.09    Fees.
(a)    Commitment Fees.
(i)    The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Pro Rata Share, a commitment fee (each, a “Revolving Commitment Fee” and, collectively, the “ Revolving Commitment Fees”) equal to the Applicable Rate times the average daily amount by which the Aggregate U.S. Revolving Commitments exceed the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations; provided that any Revolving Commitment Fee accrued with respect to the Revolving Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Revolving Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time; and provided further that no Revolving Commitment Fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(ii)     The Revolving Commitment Fees shall accrue at all times from the date hereof until the Maturity Date for the Revolving Facility, including at any time during which one or more of the conditions in Article 4 is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date for the Revolving Facility. The Revolving Commitment Fees shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(iii)    All fees referred to in this Section 2.09(a) shall be paid to Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each applicable Lender its Pro Rata Share thereof.
(b)    L/C Fees.
(i)    The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a Letter of Credit fee with respect to its participations in the outstanding Letters







of Credit (a “L/C Fee” and, collectively, the “L/C Fees”) which shall accrue at a rate per annum equal to the Applicable Rate on the average aggregate daily maximum amount then available to be drawn under all Letters of Credit (whether or not such maximum amount is then in effect under any Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit), during the period from and including the Closing Date to but excluding the later of the Maturity Date of the Revolving Facility and the date on which such Lender ceases to have any L/C Obligations; provided that any L/C Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer shall be payable, to the maximum extent permitted by applicable Law, to the other Revolving Lenders in accordance with the upward adjustments in their respective Revolving Percentages allocable to such Letter of Credit pursuant to Section 2.18(a)(iv), with the balance of such fee, if any, payable to the applicable L/C Issuer for its own account to the extent its remaining Fronting Exposure is not Cash Collateralized or otherwise participated to Revolving Lenders.
(ii)    Accrued L/C Fees shall be payable in arrears on the last Business Day of each March, June, September and December, commencing on the first such date to occur after the Closing Date, and on the Maturity Date of the Revolving Facility; provided that any such fees accruing after such Maturity Date shall be payable on written demand. Notwithstanding anything herein to the contrary, upon the request of the Required Revolving Lenders, while any Event of Default under Section 8.01(a), (e), or (f) exists, all L/C Fees shall accrue at the applicable Default Rate.
(iii)    All fees referred to in this Section 2.09(b) shall be paid to Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each applicable Lender its Pro Rata Share thereof.
(c)    L/C Fronting Fees. The Borrower agrees to pay to each L/C Issuer for its own account a fronting fee with respect to the Letters of Credit issued by such L/C Issuer at a rate per annum equal 0.125% on the average aggregate daily maximum amount then available to be drawn under all such Letters of Credit (whether or not such maximum amount is then in effect under any Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit), during the period from and including the Closing Date to but excluding the later of the Maturity Date of the Revolving Facility and the date on which such L/C Issuer ceases to have any L/C Obligations. Fronting fees accrued through and including the last day of each March, June, September and December shall be payable on the fifth Business Day following such last day, commencing on the first such date to occur after the Closing Date, and on the Maturity Date of the Revolving Facility; provided that any such fees accruing after such Maturity Date shall be payable on written demand. In addition, the Borrower agrees to pay to each L/C Issuer for its own account the customary and reasonable issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect, which fees, costs and charges shall be payable to such L/C Issuer promptly after its written demand therefor (including documentation reasonably supporting such request) and are nonrefundable.
(d)    Term Loan Prepayment Fee. In the event that all or any portion of the Term Loans is (i) repaid, prepaid, refinanced or replaced or (ii) repriced or effectively refinanced through any waiver, consent or amendment (in the case of clause (i) and clause (ii), in connection with (x) any waiver, consent or amendment to the Term Loans the primary result of which is the lowering of the Weighted Average Yield of the Term Loans or (y) the incurrence of any term loan debt financing the primary result of which is the lowering of the Weighted Average Yield of the Term Loans (or portion thereof) so repaid, prepaid,







refinanced, replaced or repriced (a “Repricing Transaction”)) occurring on or prior to the date that is six months following the Closing Date, such repayment, prepayment, refinancing, replacement or repricing (in any such case, in connection with a Repricing Transaction) will be made at 101.0% of the principal amount so repaid, prepaid, refinanced, replaced or repriced. If all or any portion of the Term Loans held by any Lender is repaid, prepaid, refinanced or replaced pursuant to Section 3.06 as a result of such Lender not agreeing or otherwise consenting to any waiver, consent or amendment referred to in clause (ii) above (or otherwise to a Repricing Transaction) on or prior to the the date that is six months following the Closing Date, such repayment, prepayment, refinancing or replacement will be made at 101.0% of the principal amount so repaid, prepaid, refinanced or replaced.
(e)    Other Fees. The Borrower shall pay or cause to be paid to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).
SECTION 2.10    Computation of Interest and Fees. All computations of interest for Base Rate Loans based on the Prime Rate shall be made on the basis of a year of three hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a three hundred and sixty-five (365) day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.14(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.11    Evidence of Indebtedness.
(a)    Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of the Borrower and the European Borrowers to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be prima facie evidence, absent manifest error of the amount of the Borrowings made by the Lenders to the Borrower and the European Borrowers and the interest and payments thereon; provided, that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or the Borrower’s or any European Borrower’s Obligations in respect of any applicable Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
(b)    Register. Administrative Agent (or its agent or sub-agent appointed by it) shall maintain the Register at its Principal Office. The Register shall be available for inspection by the Borrower or any Lender (with respect to (i) any entry relating to such Lender’s Loans and (ii) the identity of the other Lender’s (but not any information with respect to such other Lenders’ Loans)) at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall record, or shall cause to be recorded, in the Register the Revolving Commitments and the Loans in accordance with the provisions of Section 10.07(c), and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be prima facie evidence thereof, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or the Borrower’s Obligations in respect of any Loan.







(c)    Notes. If so requested by any Lender by written notice to Borrower (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, the Borrower (and any European Borrower but solely with respect to the Obligations of such European Borrower) shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.07) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after the Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Term Loan or Revolving Commitment, as the case may be.
SECTION 2.12    Payments Generally.
(a)    All payments by the Borrower or any European Borrower of principal, interest, fees and other Obligations shall be made (i) with respect to the Term Loans, in Dollars and (ii) with respect to the Revolving Commitments and Letters of Credit, in the applicable Approved Currency in which such Obligations are denominated, in each case, in same day funds, without defense (other than payment in full), recoupment, setoff, condition or deduction for any counterclaim, and delivered to the Administrative Agent not later than 2:00 p.m. on the date due at the Principal Office of the Administrative Agent for the account of Lenders; for purposes of computing interest and fees, funds received by the Administrative Agent after that time on such due date shall be deemed to have been paid by the Borrower or the applicable European Borrower on the next succeeding Business Day, in the Administrative Agent’s sole discretion.
(b)    Notwithstanding the foregoing provisions hereof, if any Committed Loan Notice with respect to a conversion or continuation is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurocurrency Rate Loans, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.
(c)    Subject to the provisos set forth in the definition of “Interest Period” as they may apply to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be included in the computation of the payment of interest hereunder or of the Revolving Commitment fees hereunder.
(d)    The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(e)    Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f)    If an Event of Default shall have occurred and not otherwise been waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.02 or pursuant to any sale of, any collection from, or other realization upon all or any part of the Collateral, all payments or proceeds received by Agents in respect of any of the Obligations, shall be applied in accordance with the application arrangements described in Section 8.03.
SECTION 2.13    Pro Rata Shares; Sharing of Payments; Availability of Funds.







(a)    Pro Rata Shares. All Loans shall be made, and all participations purchased, by Lenders required to make such Loans or purchase such participations, simultaneously and proportionately to their respective Pro Rata Shares thereof, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.
(b)    Availability of Funds. Unless the Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Credit Date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower (or any European Borrower, if applicable) a corresponding amount on such Credit Date. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among banks for three Business Days and thereafter, if such Loan is in Dollars, at the Base Rate, and if such Loan is in Euros or any other Alternative Currency, at the rate certified by the Administrative Agent to be its cost of funds (from any source which it may reasonably select). If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to the Administrative Agent at the Base Rate if such Loan is in Dollars, and at the rate certified by the Administrative Agent to be its cost of funds (from any source which it may reasonably select) if such Loan is in Euros or any other Alternative Currency. Nothing in this Section 2.13(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Commitments and Revolving Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(c)    Affiliates. Each Revolving Lender may, at its option, make any Revolving Loan available to a European Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such European Borrower to repay such Loan in accordance with the terms of this Agreement.
(d)    If, other than as provided elsewhere herein (including, without limitation, any prepayments made in connection with Section 2.05(a)(iv), Section 2.15, Section 2.16 or Section 10.07), any Lender shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set‑off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify the Administrative Agent and each other Lender of the receipt of such payment and







(b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, that if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of the Borrower or any European Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest.
SECTION 2.14    Increase in Commitments. (a) After the Closing Date, upon notice to the Administrative Agent, the Borrower may request increases to the Revolving Commitments (each such increase, the “Additional Revolving Commitments”), and/or add one or more incremental revolving facilities (each an “Additional Revolving Facility” and the revolving commitments thereunder, the “Additional Revolving Facility Commitments”), request increases to any existing Term Loan Facility and/or add one or more new tranches of term loans, including Additional Term A Loans, denominated in either Dollars or Euros (each such increase and/or new tranche, the “Additional Term Commitments”); provided that:
(i)    after giving effect to any such addition, the aggregate amount of Additional Revolving Commitments, Additional Revolving Facility Commitments, Additional Term Commitments and Additional Notes that have been added pursuant to this Section 2.14 and Section 7.03(a)(i) shall not exceed (A) $175,000,000, plus (B) the amount of all voluntary prepayments (other than prepayments of revolving loans without a permanent reduction in commitments) and voluntary commitment reductions of the Facilities prior to the date of any such incurrence (the amounts available pursuant to clauses (A) and (B), the “General Incremental Availability”), plus (C) unlimited additional amounts (the “Ratio Incremental Availability”) to the extent that, in the case of this clause (C) only, as of the last day of the most recently ended Test Period for which financial statements are internally available after giving Pro Forma Effect to such Incurrence of Loans pursuant to such Additional Term Commitments, Additional Revolving Commitments, Additional Revolving Facility Commitments and/or Additional Notes, as applicable, and any Investment consummated with the proceeds therefrom, the Total Secured Leverage Ratio does not exceed 1.00:1.00 (but assuming for the purpose of each such calculation that (x) the relevant Additional Revolving Commitments and Additional Revolving Facility Commitments shall be treated as fully drawn, (y) the cash proceeds of Additional Revolving Loans, Additional Term Loans and/or Additional Notes, as applicable, are not treated as Cash On Hand for such purpose and (z) the proceeds of any Additional Loans or Additional Notes that are to be used to repay Indebtedness have been so used to prepay such Indebtedness) and, in each case, it being understood that the Borrower may elect to Incur any such Additional Revolving Commitments, Additional Revolving Facility Commitments, Additional Term Commitments and/or Additional Notes pursuant to the Ratio Incremental Availability prior to the General Incremental Availability, and if both the Ratio Incremental Availability and the General Incremental Availability are available and the Borrower does not make an election, the Borrower will be deemed to have elected the Ratio Incremental Availability;
(ii)    no existing Lender will be required to participate in any such Additional Facility or Additional Notes without its consent (and any Lender that does not respond by the applicable deadline shall be deemed to have refused to so participate);







(iii)    any such Additional Facility shall be secured on a pari passu basis, except as otherwise provided in clause (vi)(D) below, by the same Collateral securing the Facilities;
(iv)    (a) all Additional Revolving Commitments shall be on the same terms and conditions and subject to the same documentation as the Revolving Facility (other than with respect to any upfront fees) and (b) all Additional Revolving Facility Commitments shall (A) be subject to the same terms and conditions as the Revolving Facility (with pricing, fees, maturity and immaterial terms being as agreed between the Borrower and the incremental lenders providing such Additional Revolving Facility (and, in the case of such other immaterial terms, as are reasonably satisfactory to the Administrative Agent)), (B) not mature (or require scheduled commitment reductions or amortization) prior to the Maturity Date of any then existing Revolving Facility, (C) the borrowing and repayment (except for (1) payments of interest and fees at different rates on the Additional Revolving Facility Commitments (and related outstandings), (2) repayments required upon the maturity date of the Additional Revolving Facility Commitments and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (D) below)) of Additional Revolving Loans with respect to Additional Revolving Credit Commitments after the associated Additional Commitments Effective Date shall be made on a pro rata basis with all other Revolving Commitments and Additional Revolving Commitments in effect on such Additional Commitment Effective Date, (D) the permanent repayment of Additional Revolving Loans with respect to, and termination of, Additional Revolving Facility Commitments after the associated Additional Commitments Effective Date shall be made on a pro rata basis with all other Revolving Commitments and Additional Revolving Commitments in effect on such Additional Commitment Effective Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any Class on a better than pro rata basis as compared to any other Class with a later maturity date than such Class, (E) subject to the provisions of Section 2.03(j) to the extent dealing with Letters of Credit which mature or expire after a Maturity Date when there exist Non-Expiring Credit Commitments, all Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their Pro Rata Share of the aggregate Revolving Commitments, Additional Revolving Commitments and Additional Revolving Facility Commitments on the Additional Commitment Effective Date, (F) assignments and participations of Additional Revolving Facility Commitments (and Additional Revolving Loans thereunder) shall be governed by the same assignment and participation provisions applicable to Revolving Commitments (and Revolving Loans) on the Additional Commitment Effective Date, and (G) in no event shall the European Borrowers be entitled to borrow Revolving Loans and Additional Revolving Loans in an aggregate amount exceeding the European Sublimit; and
(v)    the final maturity date of any Additional Term Loans (other than Additional Term A Loans) shall be no earlier than the Maturity Date for the existing Term Loans, the Weighted Average Life to Maturity of any Additional Term Loans (other than Additional Term A Loans) shall be no shorter than the Weighted Average Life to Maturity for the existing Term Loans, and the terms of any Additional Term Loans shall be determined by the Borrower and the lenders of such Additional Term Loans;
(vi)    the pricing, interest rate margins, discounts, premiums, rate floors, fees and amortization schedule applicable to any Additional Term Loans shall be determined by the Borrower and the lenders providing such Additional Term Loans; provided that:
(A)    with respect to any Additional Term Loans (excluding any Incremental Equivalent Term Indebtedness and any Additional Term A Loans), if the initial “yield”







of such Additional Term Loans exceeds the initial “yield” with respect to the existing Term Loans by more than 50 basis points, the applicable margins for the Term Loans shall be increased to the extent necessary so that the initial “yield” on the existing Term Loans is 50 basis points less than the initial “yield” on such Additional Term Loans and; provided further that, in determining the interest rate margins applicable to such Additional Term Loan and the existing Term Loans, (x) arrangement, commitment, structuring or other fees payable to the Arrangers (or their respective Affiliates) in connection with the existing Term Loans or to one or more arrangers (or their Affiliates) of any Additional Term Loan that are not shared generally with all Lenders providing such Additional Term Loan shall be excluded, (y) original issue discount and upfront fees paid to the Lenders thereunder shall be included (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity), and (z) if the Additional Term Loans include an interest rate floor greater than the applicable interest rate floor with respect to the applicable existing Term Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin with respect to the applicable existing Term Loans shall be required, but only to the extent an increase in the interest rate floor in the applicable existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such existing Term Loans shall be increased to the extent of such differential between interest rate floors;
(B)    the amortization requirements of such Additional Term Loans (which shall be set forth in a separate amortization schedule from the amortization schedule applicable to the existing Term Loans on the Closing Date) may differ from the existing Term Loans, so long as the Weighted Average Life to Maturity of the Additional Term Loans shall be no shorter than the Weighted Average Life to Maturity of the existing Term Loans; provided