KAR
KAR Auction Services, Inc.
8-K
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DOCUMENT: nc10004758x1_8k.htm

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): September 19, 2019
 
graphic

KAR Auction Services, Inc.
(Exact name of Registrant as specified in its charter)
         
Delaware
 
001-34568
 
20-8744739
(State or other jurisdiction of
incorporation)
 
(Commission File Number)
 
(IRS Employer
Identification No.)

11299 N. Illinois Street
Carmel, Indiana 46032
(Address of principal executive offices)
(Zip Code)
 
(800) 923-3725
(Registrant’s telephone number, including area code) 
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Securities registered pursuant to Section 12(b) of the Act:

Title of each class
Trading Symbol(s)
Name of each exchange on which registered
 
Common Stock, par value $0.01 per share
 
KAR
 
New York Stock Exchange
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
 
Emerging growth company
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
 



Item 1.01.  Entry into a Material Definitive Agreement.
 
On September 19, 2019, KAR Auction Services, Inc. (the “Company”) entered into a Third Amendment Agreement (the “Third Amendment”) to the Amended and Restated Credit Agreement, dated as of March 11, 2014 (as amended by that certain Incremental Commitment Agreement and First Amendment, dated March 9, 2016, as amended by that certain Incremental Commitment Agreement and Second Amendment, dated May 31, 2017, and as further amended by the Third Amendment, the “Credit Agreement”), by and among the Company, JPMorgan Chase Bank, N.A., as administrative agent, certain subsidiaries of the Company party thereto and the several lenders and issuing lenders party thereto.
 
The Third Amendment provides for, among other things, (i) the refinancing of the existing tranche B-4 term loans and tranche B-5 term loans with new seven-year tranche B-6 term loans (the “Tranche B-6 Term Loans”) in an aggregate principal amount of $950,000,000, (ii) repayment of all existing revolving loans and (iii) a five-year revolving credit facility in an aggregate principal amount of $325,000,000 (the “Revolving Facility”), which refinances the previously existing revolving credit facility under the Credit Agreement. The Revolving Facility also includes a $50 million sub-limit for issuance of letters of credit and a $60 million sublimit for swing line loans, which can be borrowed on same-day notice.
 
As set forth in the Credit Agreement, the Tranche B-6 Term Loans will bear interest at an adjusted LIBOR rate plus 2.25% or at the Company’s election, Base Rate (as defined in the Credit Agreement) plus 1.25%. Loans under the Revolving Facility will bear interest at a rate calculated based on the type of borrowing (either adjusted LIBOR or Base Rate) and the Company’s Consolidated Senior Secured Net Leverage Ratio (as defined in the Credit Agreement), with such rate ranging from 2.25% to 1.75% for adjusted LIBOR loans and from 1.25% to 0.75% for Base Rate loans. The Company will also pay a commitment fee between 25 to 35 basis points, payable quarterly, on the average daily unused amount of the Revolving Facility based on the Company’s Consolidated Senior Secured Net Leverage Ratio, from time to time.

The Credit Agreement contains affirmative and negative covenants that are usual and customary for a senior secured credit agreement. The negative covenants include, among other things, limitations on asset sales, mergers and acquisitions, indebtedness, liens, dividends, investments and transactions with the Company’s affiliates. The Credit Agreement also requires the Company to maintain a maximum Consolidated Senior Secured Net Leverage Ratio not to exceed 3.50 to 1.00 as of the last day of each fiscal quarter (commencing with December 31, 2019) on which any loans under the Revolving Facility are outstanding.

Certain of the lenders and agents and their respective affiliates have, from time to time, performed, and may in the future perform, various financial advisory and investment banking, commercial banking and other services for the Company and its affiliates, for which they received or will receive customary fees and expenses.
 
The foregoing description of the Third Amendment is qualified in its entirety by reference to the full text of the Third Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and which is incorporated herein by reference.

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

The information required by Item 2.03 contained in Item 1.01 above is incorporated by reference into this Item 2.03.


Item 9.01.  Exhibits.
 
(d)   Exhibits
 
Exhibit
 
Description
     
 
     
10.4
 
Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document).
 
Forward-Looking Statements
 
Certain statements contained in this Report include “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 and which are subject to certain risks, trends and uncertainties.  In particular, statements made that are not historical facts may be forward-looking statements.  Words such as “should,” “may,” “will,” “anticipates,” “expects,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “contemplates” and similar expressions identify forward-looking statements.  Such statements are not guarantees of future performance and are subject to risks and uncertainties that could cause actual results to differ materially from the results projected, expressed or implied by these forward-looking statements.  Factors that could cause or contribute to such differences include, but are not limited to, those matters disclosed in the Company’s Securities and Exchange Commission filings.  The Company does not undertake any obligation to update any forward-looking statements.
 

SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
  KAR AUCTION SERVICES, INC. 
   
Date:  September 20, 2019
By:
/s/ Eric M. Loughmiller
   
Eric M. Loughmiller
   
Executive Vice President and Chief Financial Officer
 

DOCUMENT: nc10004758x1_ex10-1.htm

Exhibit 10.1

Execution Version

THIRD AMENDMENT AGREEMENT
 
This THIRD AMENDMENT AGREEMENT, dated as of September 19, 2019 (this “Agreement”), is entered into by and among each undersigned existing Lender and each undersigned Additional Lender, in each case with Refinancing Term Commitments in respect of the Tranche B-6 Term Loans (as defined herein) (each, a “Tranche B-6 Term Lender” and, collectively, the “Tranche B-6 Lenders”), each undersigned Additional Lender with Refinancing Revolving Commitments as contemplated herein (each, a “Third Amendment Effective Date Revolving Lender” and collectively, the “Third Amendment Effective Date Revolving Lenders”), KAR AUCTION SERVICES, INC., a Delaware corporation (the “Borrower”), the other Loan Parties party hereto, JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”) and an Issuing Lender, and each other Issuing Lender party hereto.
 
PRELIMINARY STATEMENTS
 
WHEREAS, reference is made to the Amended and Restated Credit Agreement, dated as of March 11, 2014 (as amended by that certain Incremental Commitment Agreement and First Amendment, dated March 9, 2016 and that certain Incremental Commitment Agreement and Second Amendment, dated as of May 31, 2017, as further amended by this Agreement, and as it may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the lenders and agents party thereto from time to time, the Administrative Agent, and the other parties signatory thereto. Capitalized terms used but not otherwise defined herein are used with the meanings given in the Credit Agreement and the Amended and Restated Guarantee and Collateral Agreement, as applicable;
 
WHEREAS, on the terms and subject to the conditions of the Credit Agreement, pursuant to Section 4.19 thereof, the Borrower may obtain Refinancing Term Commitments and Refinancing Revolving Commitments by entering into one or more Refinancing Amendments with the applicable existing Lenders or Additional Lenders that agree to provide such commitments;
 
WHEREAS, on the terms and subject to the conditions of the Credit Agreement, the Borrower hereby requests Refinancing Term Commitments in an aggregate principal amount of $950,000,000 (the “Tranche B-6 Term Loan Commitments”);
 
WHEREAS, on the Third Amendment Effective Date (as defined below), the Borrower shall borrow Refinancing Term Loans in an aggregate principal amount of $950,000,000 from the Tranche B-6 Term Lenders incurred as a new tranche of term loans (the “Tranche B-6 Term Loans”) under and in accordance with Section 4.19 of the Credit Agreement and each Tranche B-6 Term Lender severally agrees to fund the amount set forth under “Tranche B-6 Term Loan Commitment” in Schedule A in Exhibit C annexed hereto, on the terms and subject to the conditions set forth herein;
 
WHEREAS, the proceeds of the Tranche B-6 Term Loans will be used by the Borrower on the Third Amendment Effective Date to (i) prepay in full (A) the Tranche B-4 Term Loans and Tranche B-5 Term Loans outstanding immediately before the Third Amendment Effective Date (and immediately after all Cashless Rollover Lenders (as defined below) exchange the principal amount of their Tranche B-4 Term Loans and/or Tranche B-5 Term Loans, as applicable, on a cashless basis for Tranche B-6 Term Loans in an equal principal amount) and (B) the Revolving Loans outstanding immediately before the Third Amendment Effective Date and (ii) to pay fees and expenses accrued in connection with the transactions contemplated by this Agreement, and any amounts that remain unutilized after the consummation of the Third Amendment Effective Date Transactions may be used by the Borrower and its

Subsidiaries on or after the Third Amendment Effective Date for ongoing working capital needs and general corporate purposes;
 
WHEREAS, each Lender holding Tranche B-4 Term Loans and/or Tranche B-5 Term Loans (collectively, the “Existing Term Lenders”) that on the Third Amendment Effective Date executes and delivers a consent to this Agreement in the form of the “Existing Term Lender Consent” annexed hereto as Annex I (an “Existing Term Lender Consent”) will be deemed (i) to have agreed to the terms of this Agreement, (ii) to have agreed (as further described in the Existing Term Lender Consent) to exchange an aggregate principal amount of its Tranche B-4 Term Loans and/or Tranche B-5 Term Loans, as applicable, for Tranche B-6 Term Loans on a cashless basis (the “Cashless Rollover Option” and, such Existing Term Lenders agreeing to the Cashless Rollover Option, the “Cashless Rollover Lenders”) and (iii) upon the Third Amendment Effective Date, to have exchanged (as further described in the Existing Term Lender Consent) such amount of its Tranche B-4 Term Loans and/or Tranche B-5 Term Loans, as applicable, for Tranche B-6 Term Loans in an equal principal amount;
 
WHEREAS, on the terms and subject to the conditions of the Credit Agreement, the Borrower hereby requests Refinancing Revolving Commitments in an aggregate principal amount of $325,000,000, which will replace and refinance in full all existing Revolving Commitments under the Revolving Facility;
 
WHEREAS, on the Third Amendment Effective Date, the Borrower shall obtain Refinancing Revolving Commitments in an aggregate principal amount of $325,000,000 from the Third Amendment Effective Date Revolving Lenders (the “Refinancing Revolving Facility”) under and in accordance with Section 4.19 of the Credit Agreement and each Third Amendment Effective Date Revolving Lender severally agrees to commit to provide its respective Refinancing Revolving Commitments as set forth on Schedule B in Exhibit C annexed hereto and from time to time to make Revolving Loans, on the terms and subject to the conditions set forth herein;
 
WHEREAS, each Existing Letter of Credit set forth in Schedule C in Exhibit C annexed hereto shall be deemed to be a Letter of Credit pursuant to the Revolving Facility in effect on and after the Third Amendment Effective Date;
 
WHEREAS, the Borrower, the other Loan Parties party hereto, the undersigned Lenders, the Administrative Agent and the Issuing Lenders have agreed to amend the Credit Agreement as provided in Section 3 hereof on the Third Amendment Effective Date (the “Third Amendment Effective Date Amendments”);
 
WHEREAS, the Borrower, the other Loan Parties party hereto, the undersigned Lenders and the Administrative Agent have agreed to amend the Amended and Restated Guarantee and Collateral Agreement as provided in Section 4 hereof on the Third Amendment Effective Date (as amended hereby, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Amended Guarantee and Collateral Agreement”); and
 
WHEREAS, the Borrower and each of the other entities identified as “Loan Parties” on the signature pages hereto (each, a “Reaffirming Party” and, collectively, the “Reaffirming Parties”) expect to realize substantial direct and indirect benefits as a result of this Agreement (including the agreements set forth in Section 3 hereof becoming effective and the consummation of the transactions contemplated thereby) and desire to reaffirm their obligations pursuant to the Security Documents to which they are a party.
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NOW, THEREFORE, in consideration of the premises and the agreements, other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
SECTION 1.          Refinancing Term Facility. (a)  Each Tranche B-6 Term Lender severally commits to provide its respective Tranche B-6 Term Loan Commitment as set forth in Schedule A in Exhibit C annexed hereto, and to make its Tranche B-6 Term Loans subject to the conditions set forth herein including the following terms and conditions:
 
(i)            Availability.  Subject to the occurrence of the Third Amendment Effective Date, each Tranche B-6 Term Lender severally agrees to make a Tranche B-6 Term Loan in Dollars to the Borrower on the date specified in the notice of borrowing delivered pursuant to Section 5(d) hereof, in an amount equal to such Tranche B-6 Term Lender’s Tranche B-6 Term Loan Commitment. Amounts of Tranche B-6 Term Loans repaid or prepaid may not be reborrowed. To the extent not previously utilized, all Tranche B-6 Term Loan Commitments shall terminate at 5:00 p.m., New York City time, on the Third Amendment Effective Date.
 
(ii)           Maturity Date and Amortization.  All Tranche B-6 Term Loans shall mature and be payable in full on September 19, 2026 and shall have quarterly amortization as set forth in Section 2.3 of the Credit Agreement.
 
(b)           By executing and delivering this Agreement, each Tranche B-6 Term Lender shall be deemed to confirm to and agree with the other parties signatory hereto as follows: (i) such Tranche B-6 Term Lender has full power and authority, and has taken all action necessary, to execute and deliver this Agreement; (ii) such Tranche B-6 Term Lender confirms that it has received a copy of this Agreement, the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and the Credit Agreement, as applicable, and that it is sophisticated with respect to decisions to make loans similar to those contemplated to be made hereunder and that it is experienced in making loans of such type; (iii) such Tranche B-6 Term Lender agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, make its own credit decisions in taking or not taking action under this Agreement and the Credit Agreement; (iv) such Tranche B-6 Term Lender appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (v) such Tranche B-6 Term Lender agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the Credit Agreement it is required to perform as a Tranche B-6 Term Lender.
 
(c)           Status as a Lender; Status as Term Loans.  Each Loan Party and each Tranche B-6 Term Lender acknowledges and agrees that (i) upon its execution of this Agreement and the occurrence of the Third Amendment Effective Date, each Tranche B-6 Term Lender shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder; (ii) notwithstanding anything to the contrary in the Credit Agreement or any Loan Document, each Tranche B-6 Term Loan shall be deemed (A) a “Term Loan” and (B) to have terms identical to a “Term Loan” and be part of the same Tranche as all Tranche B-6 Term Loans made on the Third Amendment Effective Date, as the applicable context requires, under, and for all purposes of, the Credit Agreement and the other Loan Documents, with such terms and conditions applicable thereto in each case
 
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as specified in the Credit Agreement or such Loan Document, unless otherwise separately and specifically stated therefor in this Agreement; (iii) for purposes of Section 11.1 of the Credit Agreement, the Tranche B-6 Term Loans shall be considered collectively with all other Loans for purposes of making determinations of “Required Lenders” (or for any consent requiring the consent of affected Lenders or of all of the Lenders); and (iv) the definition “Obligations” shall be deemed to include all unpaid principal of and accrued and unpaid interest on all Tranche B-6 Term Loans. For the avoidance of doubt, each party hereto acknowledges and agrees that it is the intention of such party that except as otherwise separately and specifically stated therefor in this Agreement or the Credit Agreement, the terms and conditions applicable to, and the provisions in the Credit Agreement and the other Loan Documents relating to, the Tranche B-6 Term Loans shall be identical to the terms and conditions applicable to, and the provisions in the Credit Agreement and the other Loan Documents relating to, the Term Loans.
 
SECTION 2.          Refinancing Revolving Facility. (a)          Each Third Amendment Effective Date Revolving Lender hereby severally commits to provide its respective Refinancing Revolving Commitments as set forth on Schedule B in Exhibit C annexed hereto and to make its Refinancing Revolving Loans, on the terms and subject to the conditions set forth herein.
 
(b)           By executing and delivering this Agreement, each Third Amendment Effective Date Revolving Lender shall be deemed to confirm to and agree with the other parties signatory hereto as follows: (i) such Third Amendment Effective Date Revolving Lender has full power and authority, and has taken all action necessary, to execute and deliver this Agreement; (ii) such Third Amendment Effective Date Revolving Lender confirms that it has received a copy of this Agreement, the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and the Credit Agreement, as applicable, and that it is sophisticated with respect to decisions to make loans similar to those contemplated to be made hereunder and that it is experienced in making loans of such type; (iii) such Third Amendment Effective Date Revolving Lender agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, make its own credit decisions in taking or not taking action under this Agreement and the Credit Agreement; (iv) such Third Amendment Effective Date Revolving Lender appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (v) such Third Amendment Effective Date Revolving Lender agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the Credit Agreement it is required to perform as a Third Amendment Effective Date Revolving Lender.
 
(c)           Status as a Lender; Status as Refinancing Revolving Loans.  Each Loan Party and each Third Amendment Effective Date Revolving Lender acknowledges and agrees that (i) upon its execution of this Agreement and the occurrence of the Third Amendment Effective Date, each Third Amendment Effective Date Revolving Lender shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder; (ii) notwithstanding anything to the contrary in the Credit Agreement or any Loan Document, each Refinancing Revolving Commitment shall be deemed (A) a “Revolving Commitment” under the “Revolving Facility”, and (B) to have terms identical to and form part of the “Revolving Facility”, in each case, as the applicable context requires, under, and for all purposes of, the Credit Agreement and the other Loan Documents, with such terms and conditions applicable thereto in each case as specified in the Credit Agreement or such Loan Document, unless otherwise separately and specifically stated therefor in this Agreement; (iii) for purposes of Section 11.1 of the Credit Agreement, the Refinancing Revolving Loans shall be considered
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collectively with all other Loans for purposes of making determinations of “Required Lenders” (or for any consent requiring the consent of affected Lenders or of all of the Lenders) and shall be treated as Revolving Loans for all other purposes thereunder in accordance with the Credit Agreement; and (iv) the definition “Obligations” shall be deemed to include all unpaid principal of and accrued and unpaid interest on all Refinancing Revolving Loans. For the avoidance of doubt, each party hereto acknowledges and agrees that it is the intention of such party that except as otherwise separately and specifically stated therefor in this Agreement or the Credit Agreement, the terms and conditions applicable to, and the provisions in the Credit Agreement and the other Loan Documents relating to, the Refinancing Revolving Loans shall be identical to the terms and conditions applicable to, and the provisions in the Credit Agreement and the other Loan Documents relating to, the Revolving Loans incurred under the Revolving Facility.
 
SECTION 3.          Amendments to Credit Agreement as of the Third Amendment Effective Date.  (a)          Effective as of the Third Amendment Effective Date, the Credit Agreement shall be amended, in accordance with the provisions of Section 4.19 and Section 11.1 thereof, in the form of the Credit Agreement set forth in Exhibit A hereto: (i) by deleting each term thereof which is reflected in strike-through font and (ii) by inserting each term thereof which is reflected in double underlined font, in each case in the place where such term appears therein.
 
(b)           Effective as of the Third Amendment Effective Date,
 
(i)            the schedules set forth in Exhibit C hereto shall be added as new schedules to the Credit Agreement; and
 
(ii)           Schedule 1.1(a), Schedule 1.1(b), Schedule 1.1(c), Schedule 5.4, Schedule 5.6, Schedule 5.15, Schedule 5.17, Schedule 8.2(d), Schedule 8.3(i), Schedule 8.7(e) and Schedule 8.9(i) of the Credit Agreement are hereby replaced by the schedules set forth in Exhibit D hereto.
 
SECTION 4.          Amendments to Amended and Restated Guarantee and Collateral Agreement as of the Third Amendment Effective Date; Termination of Amended and Restated Guranty as of the Third Amendment Effective Date(a)          Effective as of the Third Amendment Effective Date, the Amended and Restated Guarantee and Collateral Agreement shall be amended, in accordance with the provisions of Section 8.1 thereof and Section 11.1 of the Credit Agreement, in the form of the Amended and Restated Guarantee and Collateral Agreement set forth in Exhibit B hereto: (i) by deleting each term thereof which is reflected in strike-through font and (ii) by inserting each term thereof which is reflected in double underlined font, in each case in the place where such term appears therein.
 
(b)           Effective as of the Third Amendment Effective Date, Schedules 1 through 7 of the Amended and Restated Guarantee and Collateral Agreement are hereby replaced by the schedules set forth in Exhibit E hereto.
 
(c)           Effective as of the Third Amendment Effective Date, that certain Amended and Restated Guaranty, dated as of March 9, 2016, made by the Borrower in favor of the Administrative Agent for the Qualified Counterparties (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) is hereby terminated in its entirety and shall be of no further force or effect (other than any provisions thereof which expressly survive such termination in accordance with the terms thereof).
 
SECTION 5.          Conditions to the Third Amendment Effective Date.  This Agreement shall become a binding agreement of the parties hereto and the agreements set forth herein and
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the amendments set forth in Sections 3 and 4 shall each become effective on the date of the satisfaction (or waiver) of the following conditions (the date such conditions are satisfied or waived, the “Third Amendment Effective Date”):
 
(a)           this Agreement shall have been duly executed by the Borrower, each other Loan Party, the Administrative Agent, the Issuing Lenders, each Tranche B-6 Term Lender and each Third Amendment Effective Date Revolving Lender, and delivered to the Administrative Agent;
 
(b)           the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying that at the time of and immediately after the Third Amendment Effective Date, the incurrence of the Refinancing Revolving Commitments and the making of the Tranche B-6 Term Loans on the Third Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing;
 
(c)           the representations and warranties set forth in each Loan Document (including those set forth in Section 7 of this Agreement) shall be true and correct in all material respects (other than where a representation or warranty is already qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the Third Amendment Effective Date with the same effect as though made on and as of such date except, to the extent such representations and warranties refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects where a representation or warranty is already qualified by materiality) as of such earlier date;
 
(d)           the Administrative Agent shall have received (1) a notice of borrowing from the Borrower with respect to the Tranche B-6 Term Loans prior to 1:00 p.m., New York City time, one Business Day prior to the anticipated Third Amendment Effective Date, setting forth the information required pursuant to Section 2.2 of the Credit Agreement and (2) a notice of prepayment from the Borrower with respect to the Tranche B-4 Term Loans, the Tranche B-5 Term Loans and all Revolving Loans outstanding immediately prior to the Third Amendment Effective Date;
 
(e)           the Administrative Agent shall have received, on behalf of itself, the Tranche B-6 Term Lenders and the Third Amendment Effective Date Revolving Lenders, satisfactory written opinions of (i) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Loan Parties and (ii) local counsel in such jurisdictions reasonably requested by the Administrative Agent, in each case (x) dated the Third Amendment Effective Date, (y) addressed to the Administrative Agent, the Tranche B-6 Term Lenders, the Third Amendment Effective Date Revolving Lenders, and in each case, each of their permitted assigns and (z) otherwise in form and substance reasonably acceptable to the Administrative Agent;
 
(f)            the Borrower shall compensate the Administrative Agent in immediately available funds for (i) all accrued costs, fees and expenses (including reasonable fees, expenses and other charges of counsel) of the Administrative Agent and (ii) all other compensation required to be paid on the Third Amendment Effective Date to the Administrative Agent and its Affiliates, in each case, as required by the Credit Agreement and to the extent invoiced at least two (2) Business Day prior to the Third Amendment Effective Date;
 
(g)           the Administrative Agent shall have received a certificate from the chief financial officer of the Borrower substantially in the form of Exhibit I to the Credit Agreement certifying that the Loan Parties, on a consolidated basis, immediately after the consummation of the Third Amendment Effective Date Transactions, are Solvent;
 
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(h)           the Administrative Agent shall have received with respect to each Loan Party organized in a jurisdiction with respect to which opinions are required to be delivered pursuant to Section 5(e): (i) Organizational Documents certified to be true and complete as of a recent date (provided that, the certified Organizational Documents last delivered to the Administrative Agent on February 17, 2016, March 9, 2016, January 11, 2017 or May 31, 2017, as applicable, shall be deemed satisfactory to the Administrative Agent) by the appropriate Governmental Authority of the state or jurisdiction of its incorporation or organization, where applicable, and certified by a corporate secretary or assistant corporate secretary of such Loan Party to be true and complete as of the Third Amendment Effective Date, or a certification that such Organizational Documents have not changed from the certified Organizational Documents last delivered to the Administrative Agent on February 17, 2016, March 9, 2016, January 11, 2017 or May 31, 2017, as applicable, and that such Organizational Documents remain in full force and effect; (ii) resolutions or other action duly adopted by the board of directors (or other governing body) of such Loan Party authorizing and approving the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party; (iii) incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent may reasonably require providing evidence as to the identity, authority and capacity of each such Responsible Officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and (iv) such certificates of good standing or the equivalent from such Loan Party’s jurisdiction of organization or formation, as applicable, relating to the existence of each Loan Party, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel;
 
(i)            subject to Section 6, the Administrative Agent shall have received the results of a recent lien search with respect to each Loan Party in the jurisdiction where each such Loan Party is located, and such search shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 8.3 of the Credit Agreement or discharged on or prior to the Third Amendment Effective Date pursuant to documentation reasonably satisfactory to the Administrative Agent;
 
(j)            the Administrative Agent shall have received updated flood certifications with respect to each Mortgaged Property and evidence of flood insurance with respect to each Mortgaged Property located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards in a community that participates in the National Flood Insurance Program, in each case in compliance with any applicable regulations of the Board, in form and substance reasonably satisfactory to the Administrative Agent;
 
(k)           subject to Section 6, for each Mortgaged Property for which Mortgages are existing prior to the Third Amendment Effective Date, the Borrower shall deliver or cause to be delivered to Administrative Agent either:
 
(i)          (1) written confirmation (which confirmation may be provided in the form of an electronic mail acknowledgment in form and substance reasonably satisfactory to the Administrative Agent) from local counsel in the jurisdiction in which the Mortgaged Property is located substantially to the effect that: (x) the recording of the existing Mortgages is the only filing or recording necessary to give constructive notice to third parties of the Lien created by such Mortgages as security for the Loans, including the Loans evidenced by the Credit Agreement, for the benefit of the Secured Parties; and (y) no other documents, instruments, filings, recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes, are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity or priority of the Lien created by such Mortgages as security for the Loans, including the Loans evidenced by the Credit Agreement, for the benefit of the Secured Parties; and (2) an updated title search report (in form
7

and substance reasonably satisfactory to the Administrative Agent) for the Mortgaged Property applicable to such Mortgages; or
 
(ii)           (1) a Modification; (2) an endorsement to the existing title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages as security for the Loans has not changed and confirming and/or insuring that since the issuance of the existing title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than Permitted Encumbrances), a copy of all recorded documents referred to, or listed as exceptions to title in, the title policies and a copy of all other material documents affecting the Mortgaged Properties; (3) such owner’s title affidavits as may be reasonably required by the title insurer with respect to such Mortgages, including therein any so-called “no change” survey affidavit; (4) any other documents or items reasonably necessary to maintain the continuing priority of the Lien of such Mortgages as security for the Loans or required in connection with the recording of such Modifications and issuance of such endorsements, including evidence reasonably satisfactory to Administrative Agent that all premiums in respect of each such endorsement, all charges for mortgage recording tax, and all related expenses, if any, have been paid; and (5) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in each state in which a Mortgaged Property has a value, in the reasonable opinion of the Borrower, equal to or in excess of $9,000,000 (and shall cover any other Mortgaged Property located in such same state even if the value is less than $9,000,000), with respect to the enforceability of the Modifications recorded in such state and the underlying Mortgage for such Modification, together with such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to Administrative Agent;
 
(l)            the Borrower shall have provided to the Administrative Agent, the Tranche B-6 Term Lenders and the Third Amendment Effective Date Revolving Lenders (x) to the extent reasonably requested by the Tranche B-6 Term Lenders and the Third Amendment Effective Date Revolving Lenders at least seven (7) Business Days prior to the Third Amendment Effective Date, the documentation and other information that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation and (y) a certification regarding beneficial ownership required by the Beneficial Ownership Regulation;
 
(m)          each “Agent” as defined in the engagement and commitment letter dated as of September 3, 2019, by and among the Borrower, the Joint Bookrunners, the Documentation Agents and the other financial institutions party thereto, shall have received all compensation required to be paid to it (or its affiliates) on or prior to the Third Amendment Effective Date (including such fees set forth in separate fee letters, between each such “Agent” and the Borrower, dated September 3, 2019); and
 
(n)           substantially concurrently with the occurrence of the Third Amendment Effective Date, (i) the Tranche B-4 Term Loans, Tranche B-5 Term Loans and the Revolving Loans outstanding immediately prior to the Third Amendment Effective Date (and immediately after all Cashless Rollover Lenders exchange the principal amount of their Tranche B-4 Term Loans and Tranche B-5 Term Loans, as applicable, on a cashless basis for Tranche B-6 Term Loans in an equal principal amount) shall be prepaid in full and (ii) the Refinancing Revolving Commitments hereunder shall become effective and shall replace and refinance in full the Revolving Commitments immediately prior to the Third Amendment Effective Date.
 
SECTION 6.          Post-Effective Date Conditions.  To the extent the requirements of Section 5(i) or 5(k), as the case may be, have not been satisfied on or prior to the Third Amendment
 
8

Effective Date after the use of the Borrower’s commercially reasonable efforts to do so, the Borrower shall deliver, or cause to be delivered, to the Administrative Agent within ninety (90) days after the Third Amendment Effective Date (or such longer period as the Administrative Agent may agree in its sole discretion), the documents specified in Section 5(i) or 5(k).
 
SECTION 7.          Representations and Warranties.  The Borrower represents and warrants that:
 
(a)           Authority.  The Borrower and the other Loan Parties have the requisite power and authority to execute, deliver and perform its obligations under this Agreement and the Credit Agreement, as applicable.  Each Loan Party has the requisite power and authority to execute, deliver and perform its obligations under the Loan Documents, as amended hereby.  The execution, delivery and performance by the Borrower and the other Loan Parties of this Agreement, and the performance by each Loan Party of each Loan Document (as amended hereby) to which it is a party have been duly approved by all necessary organizational action of such Loan Party.
 
(b)           Enforceability.  This Agreement has been duly executed and delivered by the Borrower and each other Loan Party.  When the conditions to effectiveness in Section 5 of this Agreement have been satisfied, each of this Agreement and each Loan Document (as amended hereby) is the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought in proceedings in equity or at law).
 
(c)           Representations and Warranties.  The representations and warranties made by any Loan Party in or pursuant to the Loan Documents are true and correct in all material respects (other than where a representation or warranty is already qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the Third Amendment Effective Date as if made on and as of such date, except to the extent that such representations and warranties refer to an earlier date (in which case they are true and correct in all material respects (or true and correct in all respects where a representation or warranty is already qualified by materiality) as of such earlier date).
 
(d)           No Default.  No Default or Event of Default shall have occurred and be continuing on the date hereof or after giving effect to this Agreement.
 
(e)           Use of Proceeds.  The Borrower shall use the proceeds of the Tranche B-6 Term Loans pursuant to the terms of Section 8 of this Agreement.
 
SECTION 8.          Use of Proceeds.  The proceeds of the Tranche B-6 Term Loans shall be used (i) to prepay all Tranche B-4 Term Loans and Tranche B-5 Term Loans existing prior to the Third Amendment Effective Date (and immediately after all Cashless Rollover Lenders exchange the principal amount of their Tranche B-4 Term Loans and Tranche B-5 Term Loans on a cashless basis for Tranche B-6 Term Loans in an equal principal amount), (ii) to repay all Revolving Loans outstanding immediately prior to giving effect to the Third Amendment Effective Date and (iii) to pay fees and expenses accrued in connection with the transactions contemplated by this Agreement, and any amounts that remain unutilized after the consummation of the Third Amendment Effective Date Transactions may be used by the Borrower and its Subsidiaries on or after the Third Amendment Effective Date for ongoing working capital needs and general corporate purposes.
 
9

SECTION 9.          Reference to and Effect on the Loan Documents.
 
(a)           On and after the Third Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby.
 
(b)           On and after the Third Amendment Effective Date, each reference in the Amended and Restated Guarantee and Collateral Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Amended and Restated Guarantee and Collateral Agreement and each reference in the other Loan Documents to the “Amended and Restated Guarantee and Collateral Agreement”, “thereunder”, “thereof” or words of like import referring to the Amended and Restated Guarantee and Collateral Credit Agreement, shall mean and be a reference to the Amended and Restated Guarantee and Collateral Agreement as amended hereby.
 
(c)           The Credit Agreement and the Amended and Restated Guarantee and Collateral Agreement and the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
 
(d)           The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents or constitute a waiver or amendment of any provision of any of the Loan Documents.
 
(e)           The Borrower and the other parties hereto acknowledge and agree that, on and after the Third Amendment Effective Date, this Agreement and each of the other Loan Documents to be executed and delivered by a Loan Party shall constitute a Loan Document for all purposes of the Credit Agreement.
 
(f)            The provisions of Sections 11.12 and 11.16 of the Credit Agreement shall apply with like effect to this Agreement.
 
SECTION 10.        Reaffirmation and Grant of Security Interest.  Each of the Reaffirming Parties hereby (i) confirms and agrees that the Amended and Restated Guarantee and Collateral Agreement, the other Security Documents and all of the Collateral described in the foregoing do, and shall continue to, secure the payment and performance of all of the Secured Obligations (as defined in the Amended and Restated Guarantee and Collateral Agreement), (ii) grants the Administrative Agent, for the benefit of the Secured Parties, a security interest in such Reaffirming Party’s right, title and interest in the Collateral (as defined in the Amended and Restated Guarantee and Collateral Agreement) to secure the Secured Obligations (as defined in the Amended and Restated Guarantee and Collateral Agreement), (iii) reaffirms the security interest granted by each Reaffirming Party to the Administrative Agent and the Secured Parties prior to the date hereof and reaffirm the guaranties made pursuant to the Amended and Restated Guarantee and Collateral Agreement and (iv) acknowledges and agrees that the grant of security interests by, and the guaranties of, the Reaffirming Parties contained in the Amended and Restated Guarantee and Collateral Agreement are, and shall remain, in full force and effect after giving effect to this Agreement.
 
SECTION 11.        Financing Statements.  Each Reaffirming Party hereby authorizes the filing of any financing statements or continuation statements, and amendments to financing statements, or any similar document in any jurisdictions and with any filing offices as the Administrative Agent may determine, in its reasonable discretion, are necessary or advisable to perfect or otherwise
 
10

protect the security interest granted to the Administrative Agent herein. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as the Administrative Agent may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Administrative Agent herein, including describing such property as “all assets” or “all personal property” or words of similar import and may (but need not) add thereto “whether now owned or hereafter acquired.” Each Reaffirming Party hereby ratifies and authorizes the filing by the Administrative Agent of any financing statement with respect to the Collateral made prior to the date hereof.
 
SECTION 12.        Counterparts.  This Agreement (including all consents and authorizations relating hereto) may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.  Delivery of an executed counterpart of a signature page to this Agreement (or any consent or authorization relating hereto) by electronic transmission or facsimile shall be effective and enforceable as delivery of a manually executed counterpart thereof.  The Administrative Agent will not have any responsibility for determining whether (and makes no representation as to whether) any such counterpart has been duly authorized, executed or delivered or is enforceable against any party hereto.
 
SECTION 13.       GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
SECTION 14.        FATCAFor purposes of determining withholding Taxes imposed under FATCA, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Tranche B-6 Term Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
 
[signature pages follow]
 
11

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.
 
 
LOAN PARTIES:
       
 
KAR AUCTION SERVICES, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA CORPORATION, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
 
KAR - THIRD AMENDMENT AGREEMENT
 

 
 
A.D.E. OF ARK-LA-TEX, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
A.D.E. OF KNOXVILLE, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA ARK-LA-TEX, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA ARKANSAS, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA ATLANTA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
 
KAR - THIRD AMENDMENT AGREEMENT
 

 
ADESA BIRMINGHAM, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA CALIFORNIA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA CHARLOTTE, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA COLORADO, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA DES MOINES, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
 
KAR - THIRD AMENDMENT AGREEMENT
 

 
ADESA FLORIDA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA IDAHO, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA INDIANAPOLIS, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA LANSING, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA LEXINGTON, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
KAR - THIRD AMENDMENT AGREEMENT
 

 
ADESA MISSOURI, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA NEW JERSEY, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA NEW YORK, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA OHIO, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA OKLAHOMA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
 
KAR - THIRD AMENDMENT AGREEMENT

 
ADESA OREGON, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA PENNSYLVANIA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA PHOENIX, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA SAN DIEGO, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA-SOUTH FLORIDA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
 
KAR - THIRD AMENDMENT AGREEMENT

 
ADESA TEXAS, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA UTAH, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA WISCONSIN, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ASSET HOLDINGS III, LP
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
AUTO DEALERS EXCHANGE OF CONCORD, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
   
KAR - THIRD AMENDMENT AGREEMENT

 
 
AUTO DEALERS EXCHANGE OF MEMPHIS, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
AUTOMOTIVE FINANCE CORPORATION
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
AUTOVIN, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
PAR, INC.
 
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
AFC CAL, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
 
KAR - THIRD AMENDMENT AGREEMENT

 
ZABEL & ASSOCIATES, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
SIOUX FALLS AUTO AUCTION, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
TRI-STATE AUCTION CO., INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
LIVEBLOCK AUCTIONS INTERNATIONAL, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA DEALER SERVICES, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
   
 
KAR - THIRD AMENDMENT AGREEMENT

 
ADESA MINNESOTA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA NEVADA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
OPENLANE, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
RECOVERY DATABASE NETWORK, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
CARSARRIVE NETWORK, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
KAR - THIRD AMENDMENT AGREEMENT

 
AUCTIONTRAC, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
MOBILETRAC LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
PREFERRED WARRANTIES OF FLORIDA, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA ILLINOIS, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
AUTOMOTIVE FINANCE CONSUMER DIVISION, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
   
KAR - THIRD AMENDMENT AGREEMENT
 

 
HIGH TECH NATIONAL, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
AUTOMOTIVE KEY CONTROLS, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
HT LOCKSMITHS, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
PWI HOLDINGS, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
PREFERRED WARRANTIES, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
KAR - THIRD AMENDMENT AGREEMENT

       
 
SUPERIOR WARRANTIES, INC.
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
ADESA VIRGINIA, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
AUTONIQ, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
CARCO TECHNOLOGIES, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
111 REMARKETING, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
KAR - THIRD AMENDMENT AGREEMENT

 
STRATIM SYSTEMS INCORPORATED
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
CLEARPLAN, LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
NTH GEN SOFTWARE (FLORIDA) LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
       
 
TRADEREV USA LLC
       
 
By:
  /s/ Eric M. Loughmiller
   
Name:
Eric M. Loughmiller
   
Title:
Executive Vice President and
     
Chief Financial Officer
 
KAR - THIRD AMENDMENT AGREEMENT

     
 
JPMORGAN CHASE BANK, N.A.,
 
as Administrative Agent, an Issuing Lender, a Third Amendment Effective Date Revolving Lender and a Tranche B-6 Term Lender
     
 
By:
/s/ Brendan Korb
     
   
     Name: Brendan Korb
   
      Title:  Vice President
 
KAR - THIRD AMENDMENT AGREEMENT

 
BANK OF AMERICA, N.A.,
 
as an Issuing Lender and a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Brian D. Smith
   
Name: Brian D. Smith
   
Title:   Senior Vice President
 
KAR - THIRD AMENDMENT AGREEMENT

 
GOLDMAN SACHS BANK USA,
 
as an Issuing Lender and a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Charles D. Johnston
   
Name:  Charles D. Johnston
   
Title:    Authorized Signatory
 
KAR - THIRD AMENDMENT AGREEMENT
 

 
BARCLAYS BANK PLC,
 
as an Issuing Lender and a Third Amendment Effective Date Revolving Lender
 
 
By:
/s/ Craig Malloy
   
Name:  Craig Malloy
   
Title:    Director
 
KAR - THIRD AMENDMENT AGREEMENT
 

     
 
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
 
as an Issuing Lender and a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Judith E. Smith
   
Name: Judith E. Smith
   
Title: Authorized Signatory
     
 
By:
/s/ Nicolas Thierry
   
Name: Nicolas Thierry
   
Title: Authorized Signatory
 
KAR - THIRD AMENDMENT AGREEMENT

 
FIFTH THIRD BANK,
 
as an Issuing Lender and a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Jim Esinduy
   
Name:  Jim Esinduy
   
Title:   Vice President
 
KAR - THIRD AMENDMENT AGREEMENT

 
 
U.S. BANK NATIONAL ASSOCIATION,
 
as an Issuing Lender and a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Kathleen D. Schurr
   
Name: Kathleen D. Schurr
   
Title:   Vice President

KAR - THIRD AMENDMENT AGREEMENT


 
 
BMO HARRIS BANK, N.A.,
 
as a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Patrick Hartweger
   
Name: Patrick Hartweger
   
Title:   Managing Director

KAR - THIRD AMENDMENT AGREEMENT


 
 
KEYBANK NATIONAL ASSOCIATION,
 
as a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Christopher H. Susott
   
Name: Christopher H. Susott
   
Title:    SVP

KAR - THIRD AMENDMENT AGREEMENT


 
 
PNC BANK, NATIONAL ASSOCIATION,
 
as a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Christopher Johnson
   
Name: Christopher Johnson
   
Title:   Senior Vice President

KAR - THIRD AMENDMENT AGREEMENT


 
 
ROYAL BANK OF CANADA,
 
as a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Nicholas Heslip
   
Name: Nicholas Heslip
   
Title: Authorized Signatory

KAR - THIRD AMENDMENT AGREEMENT

 
SUNTRUST BANK,
 
as a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Lisa Garling
   
Name:  Lisa Garling
   
Title:    Director

KAR - THIRD AMENDMENT AGREEMENT


 
 
THE HUNTINGTON NATIONAL BANK,
 
as a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ Mike Kelly
   
Name: Mike Kelly
   
Title:  V.P.

KAR - THIRD AMENDMENT AGREEMENT


 
 
WELLS FARGO BANK, NATIONAL ASSOCIATION,
 
as a Third Amendment Effective Date Revolving Lender
     
 
By:
/s/ G. William Wallace
   
Name: G. William Wallace
   
Title:  Senior Vice President
 
KAR - THIRD AMENDMENT AGREEMENT

 
[The executed Existing Term Lender Consents are on file with the Administrative Agent]
 

ANNEX I
   
EXISTING TERM LENDER CONSENT TO THIRD AMENDMENT AGREEMENT
 
see attached
 

EXISTING TERM LENDER CONSENT TO THIRD AMENDMENT AGREEMENT
 
EXISTING TERM LENDER CONSENT (this “Lender Consent”) to the Third Amendment Agreement (the “Third Amendment Agreement”), by and among KAR AUCTION SERVICES, INC., a Delaware corporation (the “Borrower”), the other Loan Parties party thereto, JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”) and an Issuing Lender, and the other Lenders and Issuing Lenders party thereto, which amends the Amended and Restated Credit Agreement, dated as of March 11, 2014 (as amended by that certain Incremental Commitment Agreement and First Amendment, dated as of March 9, 2016, that certain Incremental Commitment Agreement and Second Amendment, dated as of May 31, 2017, as further amended by the Third Amendment Agreement and as it may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the lenders and agents party thereto from time to time, the Administrative Agent, and the other parties signatory thereto.  All capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Credit Agreement or the Third Amendment Agreement, as applicable.
 
The undersigned Existing Term Lender hereby irrevocably and unconditionally approves of and consents to the Third Amendment Agreement and consents to the exchange (on a cashless basis) of 100% of the outstanding principal amount of the Tranche B-4 Term Loans and/or Tranche B-5 Term Loans, as applicable, held by such Lender (or such lesser amount allocated to such Lender by the Administrative Agent) with a Tranche B-6 Term Loan in a like principal amount.
 
 
[NAME OF EXISTING TERM LENDER],
 
as an Existing Term Lender and a Tranche B-6 Term Lender
   
 
By:
   
 
Name:
 
Title:


Exhibit A
 
Credit Agreement
 
see attached
 
Exhibit 1

Exhibit 2 
EXHIBIT A TO
THIRD AMENDMENT AGREEMENT


AMENDED AND RESTATED CREDIT AGREEMENT

Amendedamended and Restatedrestated as of March 11, 2014
 
, and Amendedas amended by that certain First Amendment Agreement as of March 9, 2016, and Amended by that Certaincertain Second Amendment Agreement as of May 31, 2017 and that certain Third Amendment Agreement as of September 19, 2019
 
among
 
KAR AUCTION SERVICES, INC.,
as Borrower,
 
the Lenders party heretoTHE LENDERS PARTY HERETO,
 
and
 
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
___________________________________________
 
JPMORGAN CHASE BANK, N.A.,
as Sole Lead Arranger,
 
and
 
JPMORGAN CHASE BANK, N.A.,
BARCLAYS BANK PLCBOFA SECURITIES, INC.,
GOLDMAN SACHS BANK USA,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BARCLAYS BANK PLC,
CREDIT SUISSE SECURITIES (USA)LOAN FUNDING LLC,
FIFTH THIRD BANK
and
U.S. BANK NATIONAL ASSOCIATION,
FIFTH THIRD BANK,
and
SUMITOMO MITSUI BANKING CORPORATION


as Joint Bookrunners,
 
BMO HARRIS BANK, N.A.,
KEYBANC CAPITAL MARKETS INC.,
PNC CAPITAL MARKETS LLC,
RBC CAPITAL MARKETS,1
 

1
RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.
 

SUNTRUST ROBINSON HUMPHREY, INC.,
THE HUNTINGTON NATIONAL BANK
and
WELLS FARGO SECURITIES, LLC,
as Documentation Agents

 

TABLE OF CONTENTS
 
 
Page
   
SECTION 1. DEFINITIONS
35
     
1.1.
Defined Terms
35
1.2.
Other Definitional Provisions
5054
1.3.
Certain Calculations and Tests
5055
1.4.
Divisions
59
1.5.
Interest Rates; LIBOR Notification
59
1.6.
Cashless Rollovers
60
   
SECTION 2. AMOUNT AND TERMS OF TERM LOANS
5160
     
2.1.
Term Loans
5160
2.2.
Procedure for the Term Loan Borrowing
5260
2.3.
Repayment of Term Loans
5360
   
SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
5361
     
3.1.
Revolving Commitments
5361
3.2.
Procedure for Revolving Loan Borrowing
5461
3.3.
Swingline Commitment
5462
3.4.
Procedure for Swingline Borrowing; Refunding of Swingline Loans; Successor Swingline Lenders
5562
3.5.
Commitment Fees, etc.
5664
3.6.
Termination or Reduction of Revolving Commitments
5764
3.7.
Letter of Credit SubcommitmentCommitment
5764
3.8.
Procedure for Issuance of LetterLetters of Credit
5966
3.9.
Fees and Other Charges
6067
3.10.
L/CLetter of Credit Participations
6067
3.11.
Reimbursement Obligation of the Borrower
6168
3.12.
Obligations Absolute
6168
3.13.
Letter of Credit Payments
6269
   
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND  LETTERS OF CREDIT
6269
     
4.1.
Optional Prepayments
6269
4.2.
Mandatory Prepayments
6370
4.3.
Conversion and Continuation Options
6472
4.4.
Limitations on Eurodollar Tranches
6573
4.5.
Interest Rates and Payment Dates; Administrative Agent Fees; Other Fees
6573
4.6.
Computation of Interest and Fees
6674
4.7.
Inability to Determine Interest Rate
6675
4.8.
Pro Rata Treatment and Payments
6776
4.9.
Requirements of Law
6877
 
i

4.10.
Taxes
7079
4.11.
Indemnity
7383
4.12.
Change of Lending Office
7483
4.13.
Replacement of Lenders
7483
4.14.
Evidence of Debt
7484
4.15.
Illegality
7585
4.16.
Defaulting Lenders
7585
4.17.
Incremental Facilities
7787
4.18.
Extension Amendments
8090
4.19.
Refinancing Facilities
8392
   
SECTION 5. REPRESENTATIONS AND WARRANTIES
8594
     
5.1.
Financial Condition
8594
5.2.
No Change
8594
5.3.
Corporate Existence; Compliance with Law
8595
5.4.
Power; Authorization; Enforceable Obligations
8595
5.5.
No Legal Bar
8695
5.6.
Litigation
8696
5.7.
No Default
8696
5.8.
Ownership of Property; Liens; Insurance
8696
5.9.
Intellectual Property
8696
5.10.
Taxes
8796
5.11.
Federal Regulations
8796
5.12.
Labor Matters
8797
5.13.
ERISA
8797
5.14.
Investment Company Act; Other Regulations 88
97
5.15.
Restricted Subsidiaries
8897
5.16.
Use of Proceeds
8898
5.17.
Environmental Matters
8898
5.18.
Accuracy of Information, etc.
8999
5.19.
Security Documents
9099
5.20.
Solvency
91100
5.21.
Regulation H
91101
5.22.
Anti-Terrorism Laws
91101
5.23.
Anti-Corruption Laws and Sanctions
92102
5.24.
EEA Financial Institutions
92102
5.25.
Beneficial Ownership Certificate
102
   
SECTION 6. CONDITIONS PRECEDENT
92102
     
6.1.
Conditions to Each Extension of Credit
92102
   
SECTION 7. AFFIRMATIVE COVENANTS
93103
     
7.1.
Financial Statements
93103
7.2.
Certificates; Other Information
94104
 
ii

 
7.3.
Payment of Obligations; Payment of Taxes
95105
7.4.
Maintenance of Existence; Compliance
96106
7.5.
Maintenance of Property; Insurance
96106
7.6.
Inspection of Property; Books and Records; Discussions
96106
7.7.
Notices
96106
7.8.
Environmental Laws
97107
7.9.
Additional Collateral, etc.
98108
7.10.
Use of Proceeds
100111
7.11.
Further Assurances
100111
7.12.
Ratings
111
7.127.13.
Post-Closing Items
100112
   
SECTION 8. NEGATIVE COVENANTS
100112
     
8.1.
Financial Condition Covenant
100112
8.2.
Indebtedness
101112
8.3.
Liens
105116
8.4.
Fundamental Changes
107120
8.5.
Disposition of Property
108120
8.6.
Restricted Payments
110123
8.7.
Investments
112125
8.8.
Optional Payments and Modifications of Certain Debt Instruments; Certain Modifications
115128
8.9.
Transactions with Affiliates
116129
8.10.
Sales and Leasebacks 117[Reserved]
130
8.11.
Hedge Agreements
117130
8.12.
Changes in Fiscal Periods
117131
8.13.
Negative Pledge Clauses
117131
8.14.
Clauses Restricting Subsidiary Distributions
118132
8.15.
Lines of Business
119133
   
SECTION 9. EVENTS OF DEFAULT
119133
   
SECTION 10. THE AGENTSADMINISTRATIVE AGENT AND OTHER REPRESENTATIVES
123137
     
10.1.
Appointment
123137
10.2.
Delegation of Duties
123137
10.3.
Exculpatory Provisions
123137
10.4.
Reliance by Agents 124the Administrative Agent
138
10.5.
Notice of Default
124138
10.6.
Non‑Reliance on AgentsAdministrative Agent and Other Lenders
124139
10.7.
Indemnification
125139
10.8.
Agent in Its Individual Capacity
125140
10.9.
Successor Administrative Agent
126140
10.10.
AgentsAdministrative Agent Generally
126140
10.11.
Other Representatives
126140
 
iii

10.12.
Withholding Tax
126141
10.13.
Administrative Agent May File Proofs of Claim
127141
10.14.
Certain ERISA Matters
142
10.15.
Intercreditor Agreements
143
   
SECTION 11. MISCELLANEOUS
127143
     
11.1.
Amendments and Waivers
127143
11.2.
Notices
129145
11.3.
No Waiver; Cumulative Remedies
131147
11.4.
Survival of Representations and Warranties
131147
11.5.
Payment of Expenses; Indemnity
131147
11.6.
Successors and Assigns; Participations and Assignments
133150
11.7.
Adjustments; Set‑off
139155
11.8.
Counterparts
139156
11.9.
Severability
140156
11.10.
Integration
140156
11.11.
GOVERNING LAW
140156
11.12.
Submission To Jurisdiction; Waivers
140156
11.13.
Acknowledgments
141157
11.14.
Releases of Guarantees and Liens
141157
11.15.
Confidentiality
142158
11.16.
WAIVERS OF JURY TRIAL
142159
11.17.
[Reserved]
143159
11.18.
USA PATRIOT Act
143159
11.19.
Lender Action
143159
11.20.
Certain Undertakings with Respect to Securitization Subsidiaries
143159
11.21.
Certain Undertakings with Respect to Certain Affiliate Lenders
144160
11.22.
No Fiduciary Duty
144161
11.23.
Acknowledgment and Consent to Bail-In of EEA Financial Institutions
145162
11.24.
Effect of Amendment and Restatement of Existing Credit Agreement 146Acknowledgment Regarding Any Supported QFCs
162
 
iv

SCHEDULES:
 
1.1(a)
Mortgaged Property
1.1(b)
RestatementThird Amendment Effective Date Unrestricted Subsidiaries
1.1(c)
Existing Letters of Credit
1.1(d)
Tranche B-1 Term Loan Allocations
1.1(e)
Tranche B-2 Term Loan Allocations
1.1(f)
Revolving Commitment Allocations
5.4
Consents, Authorizations, Filings and Notices
5.6
Litigation
5.15
Restricted Subsidiaries
5.17
Environmental Matters
7.127.13
Post-Closing Items
8.2(d)
Scheduled Existing Indebtedness
8.3(i)
Scheduled Existing Liens
8.7(e)
Scheduled Existing Investments
8.9(i)
Transactions with Affiliates
 
EXHIBITS:
 
A
[Reserved]
B
Form of Compliance Certificate
C
Form of Closing Certificate of the Guarantors
D
Form of Mortgage
E-1
Form of Assignment and Assumption
E-2
Form of Affiliated Lender Assignment and Assumption
F
Form of Exemption Certificate
G-1
Form of Term Note
G-2
Form of Revolving Note
G-3
Form of Swingline Note
H
[Reserved]
I
Form of Solvency Certificate
J
Form of Closing Certificate of the Borrower
K-1
Form of Intercreditor Agreement
K-2
Form of Pari Debt Intercreditor Agreement

1


THIS AMENDED AND RESTATED CREDIT AGREEMENT, amended and restateddated as of March 11, 2014, (as amended by that certainthe First Amendment Agreement as of March 9, 2016 and amended by that certain, the Second Amendment Agreement as of May 31, 2017 (asand the Third Amendment Agreement, and as further amended, supplemented, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), is by and among, KAR Auction Services, Inc., a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “Lenders”) and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”).
 
Recitals
 
WHEREAS, the Borrower is party to that certain Credit Agreement dated as of May 19, 2011 (as amended, supplemented, restated or otherwise modified from time to time prior to the date hereof, the Existing Credit Agreement”), among the lenders party thereto and JPMorgan Chase Bank, N.A., as the administrative agent thereunder;
 
WHEREAS, on the Restatement Effective Date, the Lenders party to the Amendment and Restatement Agreement agreed to amend and restate the Existing Credit Agreement in its entirety to read as set forth in this Agreement (prior to giving effect to any changes being contemplated on the Incremental Effective Date, the First Amendment Effective Date and, the Refinancing Effective Date and the Third Amendment Effective Date), and it had been agreed by such parties that the Loans and any Letters of Credit outstanding as of the Restatement Effective Date and other “Obligations” under and as defined in the Existing Credit Agreement (including indemnities) would be governed by and deemed to be outstanding under this Agreement with the intent that the terms of this Agreement would supersede the terms of the Existing Credit Agreement (which after the Restatement Effective Date had no further effect upon the parties thereto other than with respect to any action, event, representation, warranty or covenant occurring, made or applying prior to the Restatement Effective Date), and all references to the “Credit Agreement” in any Loan Document or other document or instrument delivered in connection therewith were deemed to refer to this Agreement and the provisions hereof; provided, that (1) the grants of security interests, Mortgages and Liens under and pursuant to the Loan Documents continued unaltered to secure, guarantee, support and otherwise benefit the Obligations of the Borrower and the other Loan Parties under the Existing Credit Agreement and this Agreement and each other Loan Document and each of the foregoing continued in full force and effect in accordance with its terms except as expressly amended thereby or hereby or by the Amendment and Restatement Agreement, and the parties hereto ratified and confirmed the terms thereof as being in full force and effect and unaltered by this Agreement and (2) it was agreed and understood that this Agreement did not constitute a novation, satisfaction, payment or reborrowing of any Obligation under the Existing Credit Agreement or any other Loan Document except as expressly modified by this Agreement, nor did it operate as a waiver of any right, power or remedy of any Lender under any Loan Document;
 
WHEREAS, on the Restatement Effective Date, pursuant to the Amendment and Restatement Agreement, (a) (i) each Existing Term Lender that was an Exchanging Term Lender exchanged their Existing Term Loans on a dollar-for dollar basis for Tranche B-1 Term Loans and/or Tranche B-2 Term Loans in an amount equal to such Term Lender’s Tranche B-1 Term
1

 Loan Allocation and/or Tranche B-2 Term Loan Allocation, respectively, and any of its Existing Term Loans in excess of its applicable Tranche B-1 Term Loan Allocation and/or Tranche B-2 Term Loan Allocation was repaid in full, (ii) each Existing Term Lender that did not agree to be an Exchanging Term Lender had its Existing Term Loans repaid in full and (iii) each Additional Term Lender who committed to provide Term Loans pursuant to a Term Loan Joinder extended Tranche B-1 Term Loans and/or Tranche B-2 Term Loans in an amount equal to such Term Lender’s Tranche B-1 Term Loan Allocation and/or Tranche B-2 Term Loan Allocation, respectively and (b) (i) each Existing Revolving Lender that was an Exchanging Revolving Lender exchanged its Existing Revolving Commitments on a dollar-for-dollar basis into Revolving Commitments hereunder in an amount equal to its Revolving Commitment Allocation and any of its Existing Revolving Commitments in excess of its Revolving Commitment Allocation was terminated, (ii) each Existing Revolving Lender that did not agree to be an Exchanging Revolving Lender had its Existing Revolving Commitments terminated and (iii) each Additional Revolving Lender who committed to provide Revolving Commitments pursuant to a Revolving Loan Joinder agreed to extend Revolving Commitments hereunder in an amount equal to its Revolving Commitment Allocation (collectively, the “Restatement Effective Date Transactions”); and
 
WHEREAS, as of the Restatement Effective Date, the Lenders agreed to extend certain credit facilities to Borrower, in an aggregate amount not to exceed $2,020,000,000, in the form of (a) Term Loans consisting of (x) Tranche B-1 Term Loans in an aggregate principal amount of $650,000,000 and (y) Tranche B-2 Term Loans in an aggregate principal amount of $1,120,000,000, the proceeds of which were used to consummate the Restatement Effective Date Transactions on the Restatement Effective Date,; provided that, any proceeds of any Term Loans extended by the Additional Term Lenders in cash that were not applied to prepay Existing Term Loans and that remained unutilized after the consummation of the Restatement Effective Date Transactions were permitted to be used by Borrower and its Subsidiaries after the Restatement Effective Date for ongoing working capital needs and general corporate purposes of the Borrower and its Subsidiaries and (b) Revolving Commitments in an aggregate principal amount not to exceed $250,000,000, the proceeds of which were permitted to be used for ongoing working capital needs and general corporate purposes of the Borrower and its Subsidiaries; and
 
WHEREAS, pursuant to the First Amendment Agreement, the Borrower requested (A) that the Incremental Tranche B-3 Term Lenders provide to the Borrower, on the Incremental Effective Date, Tranche B-3 Term Loans in an aggregate principal amount of $1,350,000,000, the proceeds of which were used on the Incremental Effective Date to prepay in full (i) the Tranche B-1 Term Loans outstanding immediately before the Incremental Effective Date and (ii) the Revolving Loans outstanding immediately before the Incremental Effective Date (and the Borrower terminated all Revolving Commitments under the Revolving Facility immediately before the Incremental Effective Date) and (B) that, concurrently with the termination of all Revolving Commitments under the Revolving Facility, the Incremental Effective Date Revolving Lenders provide to the Borrower Incremental Revolving Commitments under the Revolving Facility in an aggregate principal amount of $300,000,000 (collectively, the “Incremental Effective Date Transactions”); and
 
WHEREAS, on the Incremental Effective Date, the Incremental Tranche B-3 Term Lenders and the Incremental Effective Date Revolving Lenders, as applicable, agreed to extend certain credit facilities to the Borrower in the form of (i) Tranche B-3 Term Loans in an aggregate
2

principal amount of $1,350,000,000, the proceeds of which were used to consummate the Incremental Effective Date Transactions on the Incremental Effective Date,; provided that, any proceeds of any Tranche B-3 Term Loans extended by the Incremental Tranche B-3 Term Lenders in cash that were not applied to prepay Tranche B-1 Term Loans and Revolving Loans outstanding immediately before the Incremental Effective Date and that remained unutilized after the consummation of the Incremental Effective Date Transactions were permitted to be used by the Borrower and its Subsidiaries after the Incremental Effective Date for ongoing working capital needs and general corporate purposes of the Borrower and its Subsidiaries and (ii) Revolving Commitments in an aggregate principal amount of $300,000,000, the proceeds of which were used for ongoing working capital needs, Permitted Acquisitions and general corporate purposes of the Borrower and its Subsidiaries, on the terms and conditions set forth in the First Amendment Agreement and in this Agreement (as amended by the Incremental Amendments); and
 
WHEREAS, on the Incremental Effective Date, it was agreed by the parties to the First Amendment Agreement that any Letters of Credit outstanding under the Revolving Facility immediately before the Incremental Effective Date would be governed by and deemed to be outstanding under this Agreement as amended by the Incremental Amendments;
 
WHEREAS, on the First Amendment Effective Date, the Lenders party to the First Amendment Agreement agreed with the Borrower, the other Loan Parties party to the First Amendment Agreement, the Administrative Agent and JPMorgan Chase Bank, N.A., as an Issuing Lender, to make the First Amendment Effective Date Amendments pursuant to the terms of the First Amendment Agreement.;
 
WHEREAS, pursuant to the Second Amendment Agreement, the Borrower requested (A) (x) that the Refinancing Tranche B-4 Term Lenders provide to the Borrower, on the Refinancing Effective Date, Tranche B-4 Term Loans in an aggregate principal amount not to exceedof $717,000,000 and (y) that the Refinancing Tranche B-5 Term Lenders provide to the Borrower, on the Refinancing Effective Date, Tranche B-5 Term Loans in an aggregate principal amount not to exceedof $1,050,000,000, the proceeds of which will bewere used on the Refinancing Effective Date to prepay in full (i) the Tranche B-2 Term Loans outstanding immediately before the Refinancing Effective Date, (ii) the Tranche B-3 Term Loans outstanding immediately before the Refinancing Effective Date and (iii) the Revolving Loans outstanding immediately before the Refinancing Effective Date (and the Borrower will terminateterminated all Revolving Commitments under the Revolving Facility immediately before the Refinancing Effective Date) and (B) that, concurrently with the termination of all Revolving Commitments under the Revolving Facility, the Refinancing Effective Date Revolving Lenders provide to the Borrower Incremental Revolving Commitments under the Revolving Facility in an aggregate principal amount of $350,000,000 (the foregoing transactions, together with the payment of fees and expenses incurred in connection therewith, collectively, the “Refinancing Effective Date Transactions”); and
 
WHEREAS, on the Refinancing Effective Date, the Refinancing Tranche B-4 Term Lenders, the Refinancing Tranche B-5 Term Lenders and the Refinancing Effective Date Revolving Lenders, as applicable, agreed to extend certain credit facilities to the Borrower in the form of (i) Tranche B-4 Term Loans in an aggregate principal amount not to exceedof $717,000,000 and Tranche B-5 Term Loans in an aggregate principal amount not to exceedof
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 $1,050,000,000, the proceeds of which will bewere used to consummate the Refinancing Effective Date Transactions on the Refinancing Effective Date,; provided that, any proceeds of any Tranche B-4 Term Loans and Tranche B-5 Term Loans extended by the Refinancing Tranche B-4 Term Lenders and the Tranche B-5 Term Lenders, as applicable, in cash that were not applied to prepay Tranche B-2 Term Loans, Tranche B-3 Term Loans and Revolving Loans outstanding immediately before the Refinancing Effective Date, and that remainremained unutilized after the consummation of the Refinancing Effective Date Transactions maywere permitted to be used by the Borrower and its Subsidiaries after the Refinancing Effective Date for ongoing working capital needs and general corporate purposes of the Borrower and its Subsidiaries and (ii) Revolving Commitments in an aggregate principal amount of $350,000,000, the proceeds of which willwere permitted to be used for ongoing working capital needs, Permitted Acquisitions and general corporate purposes of the Borrower and its Subsidiaries, on the terms and conditions set forth in the Second Amendment Agreement and in this Agreement (as amended by the Refinancing 2017 Amendments); and
 
WHEREAS, it has beenon the Refinancing Effective Date, it was agreed by the parties to the Second Amendment Agreement that any Letters of Credit outstanding under the Revolving Facility immediately before the Refinancing Effective Date shallwould be governed by and deemed to be outstanding under this Agreement (as amended by the Refinancing 2017 Amendments);
 
WHEREAS, on the Refinancing Effective Date, the Lenders party to the Second Amendment Agreement agreed with the Borrower, the other Loan Parties party to the Second Amendment Agreement, the Administrative Agent and JPMorgan Chase Bank, N.A., as an Issuing Lender, to make the Refinancing 2017 Amendments pursuant to the terms of the Second Amendment Agreement.;
 
WHEREAS, pursuant to the Third Amendment Agreement, the Borrower requested (A) that the Tranche B-6 Term Lenders provide to the Borrower, on the Third Amendment Effective Date, Tranche B-6 Term Loans in an aggregate principal amount of $950,000,000, the proceeds of which will be used on the Third Amendment Effective Date to prepay in full (i) the Tranche B-4 Term Loans outstanding immediately before the Third Amendment Effective Date and (ii) the Tranche B-5 Term Loans outstanding immediately before the Third Amendment Effective Date and (iii) the Revolving Loans outstanding immediately before the Third Amendment Effective Date and (B) that the Third Amendment Effective Date Revolving Lenders provide to the Borrower Refinancing Revolving Commitments under the Revolving Facility in an aggregate principal amount of $325,000,000, which shall replace and refinance in full all Revolving Commitments under the Revolving Facility immediately before the Third Amendment Effective Date (the foregoing transactions, together with the payment of fees and expenses incurred in connection therewith, collectively, the “Third Amendment Effective Date Transactions”);
 
WHEREAS, on the Third Amendment Effective Date, the Tranche B-6 Term Lenders and the Third Amendment Effective Date Revolving Lenders, as applicable, agreed to extend certain credit facilities to the Borrower in the form of (i) Tranche B-6 Term Loans in an aggregate principal amount of $950,000,000, the proceeds of which will be used to consummate the Third Amendment Effective Date Transactions on the Third Amendment
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Effective Date; provided that, any proceeds of any Tranche B-6 Term Loans extended by the Tranche B-6 Term Lenders in cash that are not applied to prepay Tranche B-4 Term Loans, Tranche B-5 Term Loans and Revolving Loans outstanding immediately before the Third Amendment Effective Date and that remain unutilized after the consummation of the Third Amendment Effective Date Transactions may be used by the Borrower and its Subsidiaries on or after the Third Amendment Effective Date for ongoing working capital needs and general corporate purposes of the Borrower and its Subsidiaries and (ii) Revolving Commitments in an aggregate principal amount of $325,000,000, the proceeds of which will be used for ongoing working capital needs, Permitted Acquisitions and general corporate purposes of the Borrower and its Subsidiaries, on the terms and conditions set forth in the Third Amendment Agreement and in this Agreement (as amended by the Third Amendment Effective Date Amendments);
 
WHEREAS, it has been agreed by the parties to the Third Amendment Agreement that any Letters of Credit outstanding under the Revolving Facility immediately before the Third Amendment Effective Date shall be governed by and deemed to be outstanding under this Agreement (as amended by the Third Amendment Effective Date Amendments); and
 
WHEREAS, on the Third Amendment Effective Date, the Lenders party to the Third Amendment Agreement agreed with the Borrower, the other Loan Parties party to the Third Amendment Agreement, the Administrative Agent and JPMorgan Chase Bank, N.A., as an Issuing Lender, to make the Third Amendment Effective Date Amendments pursuant to the terms of the Third Amendment Agreement.
 
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and, the Lenders and the Issuing Lenders to enter into this Agreement and to induce the Lenders and the Issuing Lenders to make their respective extensions of credit to the Borrower hereunder, the parties hereto hereby agree as follows:
 
SECTION 1. DEFINITIONS
 
1.1.          Defined Terms.  As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.
 
Addendum”:  an instrument, substantially in the form of Exhibit H or otherwise satisfactory to the Administrative Agent, by which a Person becomes a party to this Agreement as a Lender.
 
Additional Lender”:  as defined in Section 4.17(b).
 
Additional Term Lender”:  as defined in the Amendment and Restatement Agreement.
 
Additional Term Loans”:  as defined in the Amendment and Restatement Agreement.
 
Adjustment Date”:  as defined in the definition of “Applicable Margin”.
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Administrative Agent”:  as defined in the preamble to this Agreement.
 
AFC – Canada”: Automotive Finance Canada Inc., an Ontario corporation.
 
AFC US”:  Automotive Finance Corporation, an Indiana corporation.
 
Affiliate”:  as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
 
Affiliated Lender Assignment and Assumption”:  an Affiliated Lender Assignment and Assumption, substantially in the form of Exhibit E-2.
 
Affiliated Lenders”:  the Borrower, its Subsidiaries, and their respective Affiliates.
 
Agents”:  the collective reference to the Administrative Agent and, solely for purposes of Section 10, the Issuing Lenders.
 
Aggregate Exposure”:  with respect to any Lender at any time, an amount equal to (a) until the Restatementimmediately prior to the Third Amendment Effective Date, the aggregate amount of such Lender’s Commitments at such time, (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans and (ii) the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.
 
Aggregate Exposure Percentage”:  with respect to any Lender at any time, the ratio (expressed as a percentage) of (a) such Lender’s Aggregate Exposure at such time to (b) the Aggregate Exposure of all Lenders at such time.
 
Agreement”:  as defined in the preamble to this Agreement.
 
“All-In Yield”:  as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees or Eurodollar Rate or Base Rate “floor”; provided that original issue discount and upfront fees shall be equated to interest based on assumed four-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); provided, further, that “All-In Yield” shall not include customary arrangement or commitment fees payable to any of the Other Representatives (or their respective affiliates) in connection with the Loans or to one or more arrangers (or their respective affiliates) in connection with the Incremental Loans (and any fee payable to any Additional Lender in lieu of any portion of any such fee payable to any such arranger or affiliate thereof).
 
Amended and Restated Guarantee and Collateral Agreement”:  that certain Amended and Restated Guarantee and Collateral Agreement, dated as of March 11, 2014, as
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 amended pursuant to the Third Amendment Agreement and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
 
Amended and Restated Guaranty Agreement”: that certain Amended and Restated Guaranty Agreement, dated as of March 9, 2016, made by the Borrower in favor of the Administrative Agent for the Qualified Parties.
 
Amendment and Restatement Agreement”:  that certain Amendment and Restatement Agreement, dated as of the Restatement Effective Date, among the Borrower, the Lenders party thereto and the Administrative Agent.
 
Anti-Corruption Laws”:  all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Affiliated PersonsAffiliates from time to time concerning or relating to bribery or corruption.
 
Applicable Margin”:  for any day (a) (i) with respect to Base Rate TermRevolving Loans hereunderand Swingline Loans, the applicable rate per annum set forth for Base Rate Term Loans in clause (b) or (ca) of the definition of “Pricing Grid” as applicable and (ii) with respect to Eurodollar Rate Term Loans hereunder, the applicable rate per annum set forth for Eurodollar Rate Term Loans in clause (b) or (c) of the definition of “Pricing Grid”, as applicable and (b) (i) with respect to Base Rate Revolving Loans and Swingline Loans hereunder, the applicable rate per annum set forth under the heading “Applicable Margin for Base Rate Revolving Loans and Swingline Loans” on the applicable Pricing Grid which corresponds to the Consolidated Senior Secured Net Leverage Ratio as of the relevant date of determination and, (iib) with respect to Eurodollar Rate RevolvingTranche B-6 Term Loans hereunder, the applicable rate per annum set forth under the heading “Applicable Margin for Eurodollar Rate Revolving Loans” on the applicable Pricing Grid which corresponds to the Consolidated Senior Secured Leverage Ratio as of the relevant date of determinationin clause (b) of the definition of “Pricing Grid” and (c) with respect to any Incremental Term Loans, the rate per annum set forth in the applicable Incremental Commitment Agreement with respect thereto.  Each change in the Applicable Margin resulting from a change in the Consolidated Senior Secured Net Leverage Ratio shall be effective with respect to all Revolving Loans and Swingline Loans outstanding on and after the date of delivery to the Administrative Agent of the financial statements and certificates required by SectionsSection 7.1(a)(i) or 7.1(ba)(ii) and Section 7.2(a), respectively, indicating such change until the date immediately preceding the next date of delivery of such financial statements and certificates indicating another such change.  Notwithstanding the foregoing, until the Borrower shall have delivered the financial statements and certificates required by SectionsSection 7.1(a)(i) or 7.1(ba)(ii) and Section 7.2(a), respectively, for the period ended September 30, 2017December 31, 2019 (such date, the “Adjustment Date”), the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 23 for purposes of determining the Applicable Margin in respect of Revolving Loans and Swingline Loans.  In addition, (a) at any time during which the Borrower has failed to deliver the financial statements and certificates required by SectionsSection 7.1(a)(i) or 7.1(ba)(ii) and Section 7.2(a), respectively, or (b) at any time after the occurrence and during the continuance of an Event of Default, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Applicable Margin in respect of Revolving Loans and Swingline Loans.
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Applicable Period”:  as defined in Section 4.6(c).
 
Application”:  an application, in a form as the applicable Issuing Lender may reasonably specify from time to time to request such Issuing Lender issue a Letter of Credit.
 
Approved Fund”:  (a) a CLO and (b) with respect to any Lender that is a fund which invests in commercial loans, any other fund that invests in commercial loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
 
Asset Sale”:  any Disposition of Property or series of related Dispositions of Property (including any issuance or sale of Capital Stock of any Restricted Subsidiary of the Borrower, but excluding any Disposition permitted by Section 8.5 (other than any Dispositions permitted pursuant to Section 8.5(rs) thereof)) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $10,000,000.
 
“Asset Swap” means a concurrent purchase and sale or exchange of Property between the Borrower or any of its Restricted Subsidiaries and another Person; provided that (i) the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined on the date of the contractually agreeing to such transaction) as determined in good faith by the Borrower; and (ii) such Property is useful to the business of the Borrower or such Restricted Subsidiary.
 
Assignee”:  as defined in Section 11.6(b)(i).
 
Assignment and Assumption”:  an Assignment and Assumption, substantially in the form of Exhibit E-1.
 
Atlanta IRB Transaction”:  the transactions entered into by ADESA Atlanta, LLC with the Development Authority of Fulton County, Georgia in connection with a wholesale automobile auction facility located in Fulton, Georgia on or about December 1, 2002.
 
Available Amount”:  at any time, an amount (if a positive number) equal to (a) 50.0% of Consolidated Net Income of the Borrower and its Restricted Subsidiaries for the period (taken as one accounting period) commencing on January 1, 20172019 to the end of the most recently ended fiscal quarter for which financial statements have been delivered (or in the case such Consolidated Net Income for such period is a deficit, a negative amount equal to 100.0% of such deficit); plus (bto the extent not otherwise applied; plus (b) 100.0% of the aggregate Net Cash Proceeds received by the Borrower from the sale of Capital Stock (excluding Disqualified Capital Stock) of the Borrower or from any capital contributions to the Borrower made in cash or Cash Equivalents (excluding Disqualified Capital Stock) to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment; plus (c) 100.0% of the aggregate Net Cash Proceeds
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received by the Borrower from third-party Indebtedness and Disqualified Capital Stock of the Borrower and its Restricted Subsidiaries, in each case, issued after the Third Amendment Effective Date, which have been exchanged or converted into Capital Stock (excluding Disqualified Capital Stock) of the Borrower to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment; plus (d) 100% of the aggregate Net Cash Proceeds and the fair market value of marketable securities or other property received by the Borrower and its Restricted Subsidiaries since the RefinancingThird Amendment Effective Date from Dispositions of Investments made using the Available Amount, in each case, not to exceed the actual amount of the Investment made using such Available Amount; plus (ce) 100% of the returns, profits, distributions and similar amounts received in cash or Cash Equivalents by the Borrower and its Restricted Subsidiaries on Investments made using the Available Amount (including Investments in Unrestricted Subsidiaries), in each case, not to exceed the actual amount of the Investment made using such Available Amount; plus (f) 100% of the Investments of the Borrower and its Restricted Subsidiaries made using the Available Amount in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries (up to the fair market value of the Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation), in each case, after the Third Amendment Effective Date; plus (g) Declined Amounts; minus, (h) without duplication, (d) an amount equal to the sum of (i) redemptions, repurchases, defeasances or otherwise prepayments of Junior Debt pursuant to Section 8.8(a)(i), (ii) Restricted Payments made pursuant to Section 8.6(e)(i)(z) and (iii) Investments made pursuant to Section 8.7(z)(i)(z), in each case, after the RefinancingThird Amendment Effective Date and prior to such time or contemporaneously therewith.
 
Available Revolving Commitment”:  as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding; provided, that, in calculating any Lender’s Revolving Extensions of Credit for the purpose of determining such Lender’s Available Revolving Commitment pursuant to Section 3.5, the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero.
 
Backstop L/C”:  as defined in Section 3.7(a).
 
Bail-In Action”:  the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
 
Bail-In Legislation”:  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.
 
Base Rate”:  for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 11.00%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 0.50% and (c) the Eurodollar Rate calculated to give effect to clause (y) of such definition, if applicable, for an Interest Period of one-month
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commencing on such dateday (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%,; provided that, for purposes of this definition, the Eurodollar Rate for any day shall be based on the Eurodollar RateLIBOR Screen Rate (or if the LIBOR Screen Rate is not available for such one-month Interest Period, the Interpolated Rate) at approximately 11:00 a.m., London time, on such day.  For purposes hereof:  Prime Rate shall mean the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors).  Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Eurodollar Rate shall be effective as of the opening of business onfrom and including the effective daydate of such change in the Prime Rate, the NYFRB Rate or the Eurodollar Rate, respectively.  If the Base Rate is being used as an alternate rate of interest pursuant to Section 4.7 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.  For the avoidance of doubt, if the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
 
Base Rate Loans”:  Loans the rate of interest applicable to which is based upon the Base Rate.
 
“Beneficial Ownership Certificate”:  a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
 
“Beneficial Ownership Regulation”:  31 C.F.R. § 1010.230.
 
“Benefit Plan”:  any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
 
Benefited Lender”:  as defined in Section 11.7(a).
 
Blocked Person”:  as defined in Section 5.22(b).
 
Board”:  the Board of Governors of the Federal Reserve System of the United States (or any successor).
 
Borrower”:  as defined in the preamble to this Agreement.
 
Borrowing Date”:  any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
 
Business”:  as defined in Section 5.17(b).
 
Business Day”:  any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; and when used in connection with a EurocurrencyEurodollar Loan for a LIBOR Quoted Currencyquoted
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currency, the term "Business Day" shall also exclude any day on which banks are not open for general business in London.
 
Canadian Securitization”:  a Securitization the related documentation of which is governed by the laws of a jurisdiction in Canada.
 
Capital Expenditures”:  for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Restricted Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) which would, in accordance with GAAP, be set forth as capital expenditures in the consolidated statement of cash flow of the Borrower, but excluding in any event any (i) Permitted Acquisitions, (ii) additions to fixed assets required by GAAP in respect of Leasehold Cost Overruns and (iii) any such expenditures made with the Net Cash Proceeds of the issuance of Capital Stock of the Borrower or of any Disposition or Recovery Event not required to prepay the Loans in accordance with Section 4.2(b), (iv) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period) and (v) the purchase price of equipment that is purchased substantially contemporaneously with the trade in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time.
 
“Canadian Subsidiary”: a Subsidiary of the Borrower organized under the laws of a jurisdiction in Canada.
 
Capital Lease Obligations”:  as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or a lease liability on a balance sheet of such Person under GAAP; provided, however, that, for the all obligations of any Person that are or would have been treated as operating leases (including for avoidance of doubt, any obligations relating to a lease that was validly accounted for by such Person as an operating lease in accordance with GAAP as in effect on the Restatement Effective Date, and any similar lease entered into after the Restatement Effective Date by such Person that would have been validly accounted for by such Person as an operating lease in accordance with GAAP as in effect on the Restatement Effective Date; shall be accounted for as obligations relating to an operating lease and not as Capital Lease Obligations.  For the purposes of this Agreement, the amount ofnetwork lease or any operating indefeasible right of use) for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations at any time shall be the capitalized amount thereof at such time determinedare required in accordance with GAAPthe ASU (on a prospective or retroactive
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basis or otherwise) to be treated as lease liabilities in the financial statements to be delivered pursuant to Section 7.1.
 
Capital Stock”:  any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing, but excluding Indebtedness convertible or exchangeable into any such capital stock to the extent not yet converted into capital stock.
 
Cash Collateral”:  as defined in Section 3.7(a).
 
Cash Collateralize”:  as defined in Section 3.7(a).
 
Cash Equivalents”:  (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000; provided, however, that time deposits (including eurodollar time deposits), certificates of deposit (including eurodollar certificates of deposit) and bankers' acceptances in an aggregate amount not to exceed $2,000,000 may be maintained at any commercial bank of recognized standing organized under the laws of the United States (or any State or territory thereof) that does not satisfy the capital and surplus requirements and rating requirements set forth in this clause (b); (c) commercial paper of an issuer rated at least A-2 by Standard & Poor’s Ratings Services (“S&P”) or P-2 by Moody’s Investors Service, Inc. (Moody’s), or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least AA by S&P or AA by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition or money market funds that (i) comply with the criteria set forth in Securities and Exchange CommissionSEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.  In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the U.S., Cash Equivalents shall also include investments of the type and maturity described in clauses (a) through (g) above of foreign obligors, which Investments or obligors (or the
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parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies.
 
“Change of Control”: if (i) any Person, entity, or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Capital Stock of the Borrower (which is at the time entitled to vote in the election of the Board of Directors of the Borrower) that exceeds 35% thereof; or (ii) the Board of Directors of the Borrower shall cease to consist of a majority of Continuing Directors.  For purposes of this definition, (x) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act and (y) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
 
CLO”:  any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by a Lender or an affiliate of such Lender.
 
Closing Certificate of the Borrower”:  a certificate duly executed by a Responsible Officer on behalf of the Borrower substantially in the form of Exhibit J.
 
Code”:  the Internal Revenue Code of 1986, as amended from time to time.
 
Collateral”:  all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document (for the avoidance of doubt, Collateral shall not include any Excluded Collateral (as defined in the Amended and Restated Guarantee and Collateral Agreement)).
 
Commitment”:  as to any Lender, the Revolving Commitment of such Lender.
 
Commitment Fee Rate”:  the applicable rate per annum set forth under the heading “Commitment Fee Rate” on the applicable Pricing Grid which corresponds to the Consolidated Senior Secured Net Leverage Ratio as of the relevant date of determination.  Notwithstanding the foregoing, until the Adjustment Date, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 23 for purposes of determining the Commitment Fee Rate.  In addition, (a) at any time during which the Borrower has failed to deliver the financial statements and certificates required by SectionsSection 7.1(a)(i) or 7.1(ba)(ii) and Section 7.2(a), respectively, or (b) at any time after the occurrence and during the continuance of an Event of Default, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Commitment Fee Rate.
 
Commonly Controlled Entity”:  any trade or business, whether or not incorporated, that is under common control with the Borrower within the meaning of Section 4001 of ERISA or (solely for purposes of Section 302 of ERISA and Section 412 of the Code) is part of a group that includes the Borrower and that is treated as a single employer under Section 414 of the Code.
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Compliance Certificate”:  a certificate duly executed by a Responsible Officer on behalf of the Borrower substantially in the form of Exhibit B.
 
Conduit Lender”:  any special purpose entity organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument (a copy of which shall be provided by the Administrative Agent to the Borrower upon request), subject to the consent of the Administrative Agent and the Borrower (which consent shall not be unreasonably withheld); provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations under this Agreement (including its obligation to fund a Loan) if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and; provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Sections 4.9, 4.10, 4.11 or 11.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender, (b) be deemed to have any Commitment or (c) be designated if such designation would otherwise increase the costs of any Facility to the Borrower.
 
Confidential Information Memorandum”:  the Confidential Information Memorandum dated February, 2014September, 2019 and furnished to the Lenders in connection with thisthe Third Amendment Agreement.
 
Consolidated Coverage Ratio”:  as of any date of determination, the ratio of (a) the aggregate amount of Consolidated EBITDA for the period of four consecutive fiscal quarters ended on the most recent Test Date to (b) Consolidated Interest Expense for such four fiscal quarters; provided, that.
 
(1) if since the beginning of such period the Borrower or any Restricted Subsidiary has Incurred any Indebtedness that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation);
 
(2) if since the beginning of such period the Borrower or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness that is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid), Consolidated EBITDA
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and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such Discharge had occurred on the first day of such period;
 
(3) if since the beginning of such period the Borrower or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business (any such disposition, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness of the Borrower or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to the Borrower and its continuing Restricted Subsidiaries in connection with such Sale for such period (including but not limited to through the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent the Borrower and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale;
 
(4) if since the beginning of such period the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business in a Permitted Acquisition, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder (any such Investment or acquisition, a “Purchase”), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period; and
 
(5) if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (2), (3) or (4) above if made by the Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period.
 
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings, synergies or annualized impact of buyer fee increases relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or a Responsible Officer of the Borrower.  If any Indebtedness bears a floating
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rate of interest and is being given pro forma effect, the interest expense 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 Hedge Agreement applicable to such Indebtedness).  If any Indebtedness bears, at the option of the Borrower or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as the Borrower or such Restricted Subsidiary may designate.  If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period.  Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate determined in good faith 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.
 
“Consolidated Current Assets”:  at any date, all amounts from continuing operations (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, excluding all Securitization Assets on the balance sheet on the last day of the fiscal year that are sold thereafter in the ordinary course of a Permitted Securitization.
 
“Consolidated Current Liabilities”:  at any date, all amounts from continuing operations (other than any accrued interest related to Indebtedness) that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such date, but excluding (a) the current portion of any Funded Debt of the Borrower and its Restricted Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness consisting of Revolving Loans or Swingline Loans to the extent otherwise included therein, excluding all accounts payable with respect to Securitization Assets on the balance sheet on the last day of the fiscal year that are sold thereafter in the ordinary course of a Permitted Securitization.
 
            “Consolidated EBITDA”:  for any period:
 
(a)           Consolidated Net Income for such period plus,
 
(b)           without duplication and to the extent reflected as a charge in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
 
(i)           the aggregate amount of all provisions for all taxes (whether or not paid, estimated or accrued) based upon the income and profits of the Borrower or alternative taxes imposed as reflected in the provision for income taxes in the Borrower’s consolidated financial statements,
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(ii)          interest expense, amortization or write-off of debt discount and debt issuance costs, and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans),
 
(iii)         depreciation and amortization expense,
 
(iv)         amortization of intangibles (including goodwill) and organization costs,
 
(v)          any extraordinary, unusual or non-recurring charges, expenses or losses (whether cash or non-cash), (including such expenses in connection with actual or prospective litigation, legal settlements, fines, judgments or orders),
 
(vi)         non-cash compensation expenses from stock, options to purchase stock and stock appreciation rights issued to the management of the Borrower,
 
(vii)        any other non-cash charges, non-cash expenses or non-cash losses of the Borrower or any of its Restricted Subsidiaries for such period (including deferred rent but excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period); provided, however, that cash payments made in such period or in any future period in respect of such non-cash charges, expenses or losses (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period) shall be subtracted from Consolidated Net Income in calculating Consolidated EBITDA in the period when such payments are made,
 
(viii)       any impairment charges, write-off, depreciation or amortization of intangibles arising pursuant to Statement of Financial Accounting Standards No. 141 or to Statement of Financial Accounting Standards No. 142 and any other non-cash charges resulting from purchase accounting,
 
(ix)         proceeds of business interruption insurance in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not received so long as such Person in good faith expects to receive the same within the next four (4) fiscal quarters (it being understood that to the extent not actually received within such fiscal quarters, such proceeds shall be deducted in calculating Consolidated EBITDA for such fiscal quarters)),
 
(x)          any earn-out obligation and contingent consideration obligations (including adjustments thereof and purchase price adjustments) incurred in connection with any Permitted Acquisition or any other Investment made in compliance with Section 8.7 or any Investment
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consummated prior to the Third Amendment Effective Date, which is paid or accrued during such period,
 
(xi)         to the extent actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance, fees, costs, expenses or reserves incurred to the extent covered by indemnification provisions in any agreement in connection with any sale of Capital Stock, Permitted Acquisition, Investment, Restricted Payment, Asset Sale, or incurrences, repayments or amendments of Indebtedness, in each case, including any such transaction consummated prior to the Third Amendment Effective Date and whether or not received so long as such Person in good faith expects to receive the same within the next four (4) fiscal quarters (it being understood that to the extent not actually received within such fiscal quarters, such proceeds shall be deducted in calculating Consolidated EBITDA for such fiscal quarters),
 
(xii)       pro forma cost savings, operating expense reductions, operating improvements and synergies related to, and net of the amount of actual benefits realized during such period, from Permitted Acquisitions or other permitted Investments, restructurings, cost savings initiatives or other initiatives that are reasonably identifiable, factually supportable and projected by the  Borrower in good faith to result from actions that have been taken, committed to be taken or are expected to be taken (in the good faith determination of the Borrower), in each case, within eighteen (18) months after such event; provided that the aggregate amount of addbacks made pursuant to this clause (xii) shall not exceed 20% of Consolidated EBITDA for such period (calculated prior to giving effect to any adjustments pursuant to this clause (xii)),
 
(xiii)      (ix) any reduction in revenue resulting from the purchase accounting effects of adjustments to 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 its Restricted Subsidiaries), as a result of any acquisition consummated prior to the RestatementThird Amendment Effective Date or any Permitted Acquisition,
 
(xiv)       (x) any loss realized upon the sale or other disposition of any asset (including pursuant to any sale/leaseback transaction) that is not Disposed of in the ordinary course of business and any loss realized upon the sale or other disposition of any Capital Stock of any Person,
 
(xv)        (xi) any unrealized losses in respect of Hedge Agreements,
 
(xvi)       (xii) any unrealized foreign currency translation losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,
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(xvii)      (xiii) the amount of any minority expense net of dividends and distributions paid to the holders of such minority interest,
 
(xiv)       any costs, fees and expenses associated with the consolidation of the salvage operations of the Borrower and its Restricted Subsidiaries as described in the Confidential Information Memorandum,
 
(xviii)    cash receipts not included in Consolidated EBITDA in any period solely to the extent that the corresponding non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to clause (b)(vii) above for any previous period and not added back,
 
(xix)       (xv) any costs, fees and expenses associated with the cost reduction, operational restructuring and business improvement efforts of any consulting firm engaged by the Borrower or its Restricted Subsidiaries to perform such service;
 
(xx)        (xvi) the amount of any restructuring charges or reserve (including those relating to severance, relocation costs and one-time compensation charges), any charges, costs, fees and expenses realized upon the termination of employees and the termination or cancellation of leases, software licenses or other contracts in connection with the operational restructuring and business improvement efforts of the Borrower and its Restricted Subsidiaries; and
 
(xxi)       (xvii) Transaction Costs and any other costs, fees and expenses incurred in connection with and charges related to any Permitted Acquisition, Investments in any Wholly-Owned Subsidiary, issuances or Incurrence of Indebtedness, Dispositions, issuances of Capital Stock or refinancing transactions and modifications of instruments of Indebtedness, in each case, whether or not consummated; minus
 
(c)           to the extent included in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
 
(i)           interest income,
 
(ii)          any extraordinary, unusual or non-recurring income or gains whether or not included as a separate item in the statement of Consolidated Net Income,
 
(iii)         all non-cash gains on the sale or disposition of any property other than inventory sold in the ordinary course of business,
 
(iv)        any other non-cash income (excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period that are described in the parenthetical to clause (b)(vii) above),
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(v)          any gain realized upon the sale or other disposition of any asset (including pursuant to any sale/leaseback transaction) that is not Disposed of in the ordinary course of business and any gain realized upon the sale or other disposition of any Capital Stock of any Person,
 
(vi)         any unrealized gains in respect of Hedge Agreements, and
 
(vii)        any unrealized foreign currency translation gains in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person, all as determined on a consolidated basis; and plus
 
(d)           the annualized impact of buyer fee increases on any business acquired in a Permitted Acquisition.
 
For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a “Reference Period”) pursuant to any determination of the Consolidated Senior Secured Leverage Ratio or the Consolidated Leverage Ratio, (i) if at any time during such Reference Period the Borrower or any Restricted Subsidiary shall have made any Material Disposition or designated any Restricted Subsidiary as an Unrestricted Subsidiary, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition or designation for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period the Borrower or any Restricted Subsidiary shall have made a Material Acquisition or designated any Unrestricted Subsidiary as a Restricted Subsidiary, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto, as if such Material Acquisition or designation occurred on the first day of such Reference Period, and, Consolidated EBITDA may be increased by adding back any cost savings related thereto to the extent described as such in writing by the Borrower to the Administrative Agent and expected to be realized within 365 days of such Material Acquisition and all costs incurred to achieve such cost savings.  As used in this definition, “Material Acquisition” means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of consideration by the Borrower and its Restricted Subsidiaries in excess of $5,000,000; and “Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Restricted Subsidiaries in excess of $5,000,000.
 
Consolidated Interest Expense”:  for any period, (a) the total interest expense of the Borrower and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the Borrower and its Restricted Subsidiaries, including any such interest expense consisting of (i) interest expense attributable to Capital Lease Obligations, (ii) amortization of debt discount, (iii) interest in respect of Indebtedness of any other Person that has been guaranteed by the Borrower or any Restricted Subsidiary, but only to the extent that such interest is actually paid by the Borrower or any Restricted Subsidiary, (iv) non-cash interest expense, (v) the interest portion of any deferred payment obligation and (vi) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance
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financing, plus (b) preferred stock dividends paid in cash in respect of Disqualified Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary and, minus (c) to the extent otherwise included in such interest expense referred to in clause (a) above, amortization or write-off of financing costs, in each case under clauses (a) through (c) as determined on a consolidated basis in accordance with GAAP; provided, that gross interest expense shall be determined after giving effect to any net payments made or received by the Borrower and its Restricted Subsidiaries with respect to interest rate Hedge Agreements.
 
Consolidated Leverage Ratiothe ratio of (a) Consolidated Total Debt on the last day of any fiscal quarter of the Borrower to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.
 
Consolidated Net Income”:  for any period, the consolidated net income (or loss) of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided, that there shall be excluded the income (or loss) of any Person (other than a Restricted Subsidiary of the Borrower) in which the Borrower or any of its Restricted Subsidiaries has an ownership interest recorded using the equity method, except to the extent that any such income is actually received by the Borrower or such Restricted Subsidiary in the form of dividends or similar distributions.
 
“Consolidated Net Leverage Ratio”:  the ratio of (a) Consolidated Total Debt on the last day of any fiscal quarter of the Borrower to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.
 
Consolidated Senior Secured Net Leverage Ratio”:  the ratio of (a) Consolidated Total Debt on the last day of any fiscal quarter of the Borrower, except that portion thereof consisting of Indebtedness that is not secured by a Lien on any Property of any Group Member, to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.
 
Consolidated Total Assets”:  as of any date, the total assets of Borrower and theits Restricted Subsidiaries, determined in accordance with GAAP, as set forth on the consolidated balance sheet of Borrower as of such date.
 
Consolidated Total Debt”:  at any date, (a) the aggregate amount shown or required by GAAP to be shown as a liability on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of such date in respect of (i) all Indebtedness of the Borrower or any of its Restricted Subsidiaries then outstanding, excluding any such Indebtedness in connection with the Atlanta IRB Transactionobligations for borrowed money; (ii) all Capital Lease Obligations and purchase money indebtedness; (iii) any obligations evidenced by notes, bonds, debentures or other similar instruments; and (iv) all unreimbursed obligations in respect of drawn letters of credit, bank guarantees or similar instruments (provided that Consolidated Total Debt shall not include Indebtedness in respect of any letter of credit or, bank guaranty or similar instrument, except to the extent of any unreimbursed obligations in respect of any drawn letter of credit or, bank guaranty), and or similar instruments) minus (b) Unrestricted Cash; provided, that, solely for purposes of calculating Consolidated Total Debt in connection with determining the Consolidated Senior Secured Net Leverage Ratio for purposes of Sections 4.17 and 8.2(vw), Unrestricted Cash that is the proceeds of the Incremental Loans to be
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Incurred under Sections 4.17 or Indebtedness Incurred pursuant to Section 8.2(vw) shall not, taken together with all such other proceeds of Incremental Loans previously deducted from Consolidated Total Debt in connection with determining the Consolidated Senior Secured Net Leverage Ratio for purposes of Sections 4.17 and 8.2(vw) in connection with the incurrence of any Incremental Loans or Incremental Commitments under SectionsSection 4.17 or Indebtedness Incurred pursuant to Section 8.2(v), exceed $125,000,000.  For the avoidance of doubt, Consolidated Total Debt shall not include any Indebtedness of a Securitization Subsidiary in connection with a Permitted Securitization.
 
Consolidated Working Capital”:  at any date, the excess of Consolidated Current Assets on such date over Consolidated Current Liabilities on such date.
 
Continuing Directors”:  the directors of the Borrower on the RestatementThird Amendment Effective Date and each other director of the Borrower whose nomination for election to the board of directorsBoard of Directors of the Borrower is approved by at least a majority of the then Continuing Directors or such other director who receives the vote of the Permitted Investors in his or her election to the board of directorsBoard of Directors of the Borrower by the shareholders of the Borrower.
 
Contractual Obligation”:  as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
 
Control Agreement”:  with respect to any deposit account of the Borrower or any of its Restricted Subsidiaries, one or more control agreements which (a) is sufficient to establish the Administrative Agent’s control per Section 9-104 of the Uniform Commercial Code, (b) provides the Administrative Agent with a perfected, first priority security interest in all amounts from time to time on deposit in such deposit account, and (c) is otherwise in form and substance reasonably satisfactory to the Administrative Agent.
 
Control Investment Affiliate”:  as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized by such Person or a common controlling Person primarily for the purpose of making equity or debt investments in one or more companies.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
 
Credit Agreement Refinancing Indebtedness”:  (a) Permitted Pari Passu Refinancing Debt, (b) Permitted Junior Refinancing Debt, (c) Permitted Unsecured Refinancing Debt and (d) Indebtedness Incurred or Refinancing Revolving Commitments obtained pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans, Incremental Loans, Refinancing Term Loans, Refinancing Revolving Loans, outstanding Revolving Loans or (in the case of Refinancing Revolving Commitments obtained pursuant to a Refinancing Amendment) Revolving Commitments, Incremental Revolving Commitments or the Refinancing Revolving Commitments
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hereunder (including any successive Credit Agreement Refinancing Indebtedness) (“Refinanced Debt”); provided, that (i) such extending, renewing or refinancing Indebtedness (including, if such Indebtedness includes any Refinancing Revolving Commitments, the unused portion of such Refinancing Revolving Commitments) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (and, in the case of Refinanced Debt consisting, in whole or in part, of unused Revolving Commitments or Refinancing Revolving Commitments, the amount thereof), plus accrued and unpaid interest capitalized, any premium or other reasonable amount paid, and fees and expenses reasonably incurred in connection therewith, (ii) such Indebtedness has a later maturity and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt, (iii) such Refinanced Debt shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, Incurred or obtained; provided, that to the extent that such Refinanced Debt consists, in whole or in part, of Revolving Commitments or Refinancing Revolving Commitments (or Revolving Loans, Refinancing Revolving Loans or Swingline Loans Incurred pursuant to any Revolving Commitments or Refinancing Revolving Commitments), such Revolving Commitments or Refinancing Revolving Commitments, as applicable, shall be terminated, and all accrued fees in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, Incurred or obtained and, (iv) such Indebtedness will have terms and conditions (other than pricing, premiums, fees, rate floors, and optional prepayment terms) that are substantially identical to (or in the case of any Credit Agreement Refinancing NotesIndebtedness in the form of notes, are on market terms or are substantially identical to), or (taken as a whole) are no more favorable to the investors providing such Credit Agreement Refinancing Indebtedness than, the Refinanced Debt (except for covenants or other provisions applicable only to the period after the Latest Maturity Date)., and (v) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (ii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (ii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, clause (iv) in this definition shall not prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.
 
Credit Facilities”:  to the extent specified by the Borrower by notice to the Administrative Agent, one or more other debt facilities or commercial paper facilities, in each case, with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.
 
“Declined Amount”:  as defined in Section 4.2(e).
 
“Declining Lender”:  as defined in Section 4.2(e).
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Default”:  any of the events specified in Section 9, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
 
Defaulting Lender”:  any Lender, as determined by the Administrative Agent in its reasonable discretion, that has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline Loans within three Business Days of the date required to be funded by it hereunder (unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied), (b) notified the Borrower, the Administrative Agent, any Issuing Lender, the Swingline Lender or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan or issuing a Letter of Credit, as applicable, under this Agreement cannot be satisfied) or under other agreements generally in which it commits to extend credit, (c) failed, within three Business Days after request by the Administrative Agent and the Borrower or any Issuing Lender, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans (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 or such Issuing Lender and the Borrower), (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iii) become the subject of or has a parent company that has become the subject of a Bail-In Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs 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.
 
Discharge”:  as defined in the definition of “Consolidated Coverage Ratio”Section 1.3(d)(ii).
 
“Disinterested Director” shall mean, with respect to any Person and transaction, a member of the board of directors (or equivalent governing body) of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction.
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Disposition”:  with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof.  The terms “Dispose” and “Disposed of” shall have correlative meanings.
  
Disqualified Capital Stock”:  any Capital Stock which, 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, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, 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 of clauses (a) through (d) above, prior to the date that is ninety-one (91) days after the later of the Revolving Termination Date and the date final payment is due on the Term Loans.  Notwithstanding the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case, in the ordinary course of business of the Borrower or any Restricted Subsidiary, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Borrower (or any Subsidiary) shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
  
“Documentation Agent”: each of BMO Harris Bank, N.A., KeyBanc Capital Markets Inc., PNC Capital Markets LLC, RBC Capital Markets LLC, SunTrust Robinson Humphrey, Inc., The Huntington National Bank and Wells Fargo Securities, LLC.
 
Dollars” and “$ dollarsdenote the lawful currency of the United States of America.
 
Domestic Subsidiary”:  any Restricted Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States.
 
Earnout Obligation”:  an obligation to pay the seller in an acquisition a future payment that is contingent upon the financial performance of the business acquired in such acquisition exceeding a specified benchmark level and that becomes payable when such excess financial performance is achieved.
 
EEA Financial Institution”:  (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA
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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”:  any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
 
EEA Resolution Authority”:  any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
 
Environmental Laws”:  any and all applicable foreign, Federalfederal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability concerning protection or preservation of the environment and natural resources, including those relating to the generation, use storage, transportation, disposal, release, or threatened release of, or exposure to, Materials of Environmental Concern.
 
Environmental Permits”:  any and all permits, licenses, approvals, registrations, exemptions and other authorizations issued by any Governmental Authority under any Environmental Law.
 
ERISA”:  the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor thereto.
 
Escrow Debt”:  Indebtedness permitted to be incurred hereunder that is incurred in connection with any transaction permitted hereunder for so long as proceeds thereof have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction.
 
EU Bail-In Legislation Schedule”:  the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
 
“Eurodollar Loans”:  Loans the rate of interest applicable to which is based upon the Eurodollar Rate.
 
“Eurodollar Rate”:  with respect to any Eurodollar Loan for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the Eurodollar Base Rate for such Interest Period multiplied by the Statutory Reserve Rate, provided, that (a) in the case of the Tranche B-2 Term Loans and Tranche B-3 Term Loans, “Eurodollar Rate” shall mean an interest rate per annum equal to the greater of the (x) Eurodollar Base Rate for such Interest Period multiplied by the Statutory Reserve Rate and (y) 0.75% per annum and (b) in the case of the Tranche B-4 Term Loans and Tranche B-5 Term Loans, “Eurodollar Rate” shall mean an interest rate per annum equal to the greater of the (x) Eurodollar Base Rate for such Interest Period multiplied by the Statutory Reserve Rate and (y) 0.00% per annum. The Eurodollar Rate for any Eurodollar Loan that includes the Statutory Reserve Rate as a component of the calculation will be adjusted automatically with
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respect to all such Eurodollar Loan then outstanding as of the effective date of any change in the Statutory Reserve Rate.
 
Eurodollar Base Rate”:  with respect to any Eurodollar LoansLoan for any applicable Interest Period and at all times subject to Section 4.5 hereof, the LIBOR Screen Rate as ofat approximately 11:00 a.m., London time, on the Quotation Day for such currency and Interest Period (provided, that if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement); provided, further, that, if a LIBOR Screen Rate shall not be available at the applicable time for the applicable Interest Period, then the Eurodollar Base Rate for such currency and Interest Period shall be the Interpolated Rate (provided, that if the Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement); provided, further, that if the LIBOR Screen Rate shall not be available for such Interest Period with respect to such Eurodollar Loan for any reason and the Administrative Agent shall determine that it is not possible to determine the Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error), then the applicable Eurodollar Base Rate shall be the Reference Bank Rate for such Interest Period for such Eurodollar Loan..
 
“Eurodollar Loans”:  Loans the rate of interest applicable to which is based upon the Eurodollar Rate.
 
“Eurodollar Rate”:  with respect to any Eurodollar Loan for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1.00%) equal to the Eurodollar Base Rate for such Interest Period multiplied by the Statutory Reserve Rate. The Eurodollar Rate for any Eurodollar Loan that includes the Statutory Reserve Rate as a component of the calculation will be adjusted automatically with respect to all such Eurodollar Loan then outstanding as of the effective date of any change in the Statutory Reserve Rate.
 
Eurodollar Tranche”:  the collective reference to Eurodollar Loans under a particular Facility for which the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).
 
Event of Default”:  any of the events specified in Section 9,; provided, that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
 
Excess Cash Flow”:  for any fiscal year of the Borrower, the excess, if any, of (a) the sum, without duplication, of (i) Consolidated Net Income for such fiscal year, (ii) the amount of all non-cash charges (including depreciation and amortization) deducted in arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital for such fiscal year, (iv) the aggregate net amount of non-cash losses by the Borrower and its Restricted Subsidiaries during such fiscal year, to the extent deducted in arriving at such Consolidated Net Income, and (v) all Reserved Funds that were not expended in such fiscal year for the purposes for which they were reserved in the immediately preceding fiscal year over (b) the sum, without duplication, of  (i) the aggregate amount actually paid by the Borrower and its Restricted Subsidiaries in cash during such fiscal year on account of Capital Expenditures, Investments and Permitted Acquisitions (except from amounts
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designated as Reserved Funds in the preceding fiscal year, from Indebtedness Incurred and equity contributions received or from any Reinvestment Deferred Amount), (ii) the aggregate amount of all regularly scheduled and voluntary principal payments of Funded Debt (excluding the Term Loans) of the Borrower and its Restricted Subsidiaries made during such fiscal year (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), except to the extent such Funded Debt is being refinanced with other Funded Debt, (iii) scheduled payments of the Term Loans, the Incremental Loans made pursuant to Incremental Term Loan Commitments and the Refinancing Term Loans made during such fiscal year, (iv) increases in Consolidated Working Capital for such fiscal year, (v) the aggregate net amount of non-cash gains, non-cash income and non-cash credits accrued by the Borrower and its Restricted Subsidiaries during such fiscal year, to the extent included in arriving at such Consolidated Net Income, (vi) all amounts designated as Reserved Funds in such fiscal year and (vii) Restricted Payments made in cash pursuant to Section 8.6 that are financed with internally generated cash flows.
 
Exchange Act”:  the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
 
Exchanging Lenders”:  as defined in the Amendment and Restatement Agreement.
 
Exchanging Term Lenders”:  as defined in the Amendment and Restatement Agreement.
 
Excluded Indebtedness”:  all Indebtedness permitted by Section 8.2 (except the net cash proceeds of any Permitted Pari Passu Refinancing Debt, any Permitted Junior Refinancing Debt, or any other Credit Agreement Refinancing Indebtedness).
 
Excluded Subsidiaries”:  (a) any Immaterial Subsidiary, (b) any Foreign Subsidiary, (c) any Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, (d) any Securitization Subsidiary, (e) any Unrestricted Subsidiary and (f) any other Subsidiary with respect to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequences of providing a guarantee of or granting Liens to secure the Obligations would be excessive in relation to the practical benefit to be afforded thereby.
 
Excluded Redemption Obligation”:  an obligation (i) to purchase, redeem, retire or otherwise acquire for value any Capital Stock that is not, and cannot in any contingency become required to be purchased, redeemed, retired or otherwise acquired prior to the 91st day after the later of the Latest Maturity Date or (ii) an obligation of the Borrower to purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower or any Parent from present or former officers, directors or employees of any Group Member upon the death, disability, retirement or termination of employment or service of such officer, director or employee, or otherwise under any stock option or employee stock ownership plan approved by the board of directorsBoard of Directors of the Borrower or any Parent.
 
“Excluded Subsidiaries”:  (a) any Immaterial Subsidiary, (b) any Foreign Subsidiary, (c) any Subsidiary that is not a Wholly Owned Subsidiary of the Borrower; provided
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that a Subsidiary that ceases to be a Wholly Owned Subsidiary of the Borrower solely as a result of the Capital Stock of such Subsidiary becoming owned by an Affiliate of the Borrower shall not be deemed to be an Excluded Subsidiary pursuant to this clause (c), (d) any Unrestricted Subsidiary, (e) any special purpose vehicle (or similar entity), (f) any captive insurance subsidiary (g) any not-for-profit Subsidiary, (h) any Subsidiary, including any regulated entity that is subject to net worth or net capital or similar capital and surplus restrictions, acquired by the Borrower or a Restricted Subsidiary after the Third Amendment Effective Date that is prohibited or restricted by applicable Requirement of Law, accounting policies or by contractual obligation existing on the date such Subsidiary is so acquired (and so long as such contractual obligation was not incurred in contemplation of such acquisition) from providing a guaranty pursuant to the Amended and Restated Guarantee and Collateral Agreement, or if such guaranty would require governmental (including regulatory) or third party consent, approval, license or authorization (except to the extent that such consent, approval, license or authorization has been obtained), (i) any other Subsidiary with respect to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequences of providing a guarantee of or granting Liens to secure the Obligations would be excessive in relation to the practical benefit to be afforded thereby and (j) any Securitization Subsidiary.
 
“Excluded Swap Obligations”: as defined in the Amended and Restated Guarantee and Collateral Agreement.
 
Excluded Taxes”:  as defined in Section 4.10(ab).
 
Executive Order”:  as defined in Section 5.22(c)(i).
 
Existing Credit Agreement”:  as defined in the Recitals hereto.
 
Existing Indebtedness”:  Indebtedness and other obligations outstanding under the Existing Credit Agreement.
 
Existing Letter of Credit”:  any “Letter of Credit” issued, extended or renewed under the Existing Credit Agreement or this Agreement prior to the RefinancingThird Amendment Effective Date and scheduled in Schedule 1.1(c) in Exhibit D toof the SecondThird Amendment Agreement.
 
Existing Revolving Commitment”:  as defined in the Amendment and Restatement Agreement.
 
Existing Revolving Lenders”:  as defined in the Amendment and Restatement Agreement.
 
Existing Securitization”:  the securitizations pursuant to (i) the Fourth Amended and Restated Receivables Purchase Agreement, dated April 26, 2011, among AFC Funding Corporation, as seller, AFC – US, as servicer, Fairway Finance Company, LLC, Monterey Funding LLC, Salisbury Receivables Company LLC and such other entities as may become purchasers, BMO Capital Markets Corp., as initial agent, and the other parties thereto and (ii) the Receivables Purchase Agreement, dated February 8, 2010, among Automotive FinanceAFC – Canada, Inc.,
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as seller and initial servicer, the Borrower, as Performance Guarantorperformance guarantor, and BNY Trust Company of Canada, as trustee of Precision Trust.
 
Existing Term Lenders”:  each Term Lender under and as defined in the Existing Credit Agreement.
 
Existing Term Loans”:  as defined in the Amendment and Restatement Agreement.
 
Extended Loans”:  as defined in Section 4.18(a).
 
Extended Tranche”:  as defined in Section 4.18(a).
 
Extending Lender”:  as defined in Section 4.18(b).
 
Extending Term Lender”:  as defined in the Amendment and Restatement Agreement.
 
Extending Revolving Lender”:  as defined in Section 4.18(b).
 
Extension Amendment”:  as defined in Section 4.18(c).
 
Extension Date”:  as defined in Section 4.18(d).
 
Extension Election”:  as defined in Section 4.18(b).
 
Extension Request”:  as defined in Section 4.18(a).
 
Facility”:  each of (a) (vi) the Tranche B-1 Term Loans (“Tranche B-1 Term Facility”), (wii) the Tranche B-2 Term Loans (“Tranche B-2 Term Facility”), (xiii) the Tranche B-3 Term Loans (“Tranche B-3 Term Facility”), (yiv) the Tranche B-4 Term Loans (“Tranche B-4 Term Facility”) and, (zv) the Tranche B-5 Term Loans (“Tranche B-5 Term Facility) and (vi) the Tranche B-6 Term Loans (“Tranche B-6 Term Facility” and, together with the Tranche B-1 Term Facility, Tranche B-2 Term Facility, Tranche B-3 Term Facility and, Tranche B-4 Term Facility and Tranche B-5 Term Facility, the “Term Facilities”) and (b) the Revolving Commitments and the extensions of credit made thereunder (the “Revolving Facility and, together with the Term Facilities, the “Facilities”).
 
FATCA”:  Sections 1471 through 1474 of the Code, effective as of the date hereof (and any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
 
Federal Funds Effective Rate”:  for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such
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manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate.
 
First Amendment Agreement”:  that certain Incremental Commitment Agreement and First Amendment, dated as of March 9, 2016, by and among the Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
 
First Amendment Effective Date”:  as defined in the First Amendment Agreement.
 
First Amendment Effective Date Amendments”:  as defined in the First Amendment Agreement.
 
First Tier Foreign Subsidiary”:  each Foreign Subsidiary with respect to which any one or more ofthe Borrower and the domestic Restrictedor any of its Domestic Subsidiaries directly owns or controls all of such Foreign Subsidiary’s issued and outstanding Capital Stock.
 
“Fitch”:  Fitch Ratings, Inc. and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
 
“Fixed Amount”: as defined in Section 1.3(c).
 
Fixed Incremental Amount”:  $300,000,000as defined in the definition of “Incremental Amount”.
 
Fixed Restricted Payment Basket Amount”:  $225,000,000 in each fiscal year.
 
Flood Insurance Laws":  collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto,  (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto  and (iv) the  Flood Insurance Reform Act of 2004 and the Biggert –Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute thereto, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing  or interpreting any of the foregoing, as amended or modified from time to time.
 
Foreign Subsidiary”:  any Restricted Subsidiary of the Borrower that is not a Domestic Subsidiary or that is a Foreign Subsidiary Holdco.
 
Foreign Subsidiary Holdco”:  any Domestic Subsidiary that (a) has no material assets other than equity (or equity and other securities) of one or more Foreign Subsidiaries and other assets relating to the ownership interest in any such securities and (b) has no Guarantee Obligations in respect of any Indebtedness of the Borrower or any Domestic Subsidiary.
 
Former Properties”:  as defined in Section 5.17(d).
 
Funded Debt”:  as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures within one year from
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such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans.
 
Funding Office”:  the office of the Administrative Agent specified in Section 11.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.
 
GAAP”:  generally accepted accounting principles in the United States as in effect from time to time except that for purposes of Section 8.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements referred to in Section 5.1.  In the event that any Accounting Change (as defined below) shall occur and such change would otherwise result in a change in the method of calculation of financial covenants, standards or terms in this Agreement or if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Third Amendment Effective Date in GAAP regardless of whether any such notice is given before or after any Accounting Change or in the application thereof, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes 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 as if such Accounting Changes had not occurred.  “Accounting Changes” refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC.  Notwithstanding any other provision contained herein, the amount of any Indebtedness under GAAP with respect to Capital Lease Obligations shall be determined in accordance with the definition of Capital Lease Obligations.
 
Governmental Authority”:  any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
 
Group Members”:  the collective reference to the Borrower and its Restricted Subsidiaries.
 
Guarantee Obligation”:  as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement,
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counterindemnity or similar obligation which (in the case of either clause (a) or clause (b)), guarantees or has the effect of guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any such obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or product warranties in effect on the Third Amendment Effective 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 Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
 
Hedge Agreements”:  any interest rate protection agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
 
“Hedge Termination Value”: in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) have been determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).
 
Immaterial Subsidiary”:  any Restricted Subsidiary that is not a Material SubsidiaryIBA”:  as defined in Section 1.5.
 
Immaterial Subsidiary”:  any Restricted Subsidiary that is not a Material Subsidiary; provided that all Immaterial Subsidiaries, in the aggregate, shall not (a) contribute greater than five percent (5%) of the Borrower’s Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1 or (b) contribute greater than five percent (5%)
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of the Borrower’s Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1.
 
Impacted Interest Period”:  means, with respect to a LIBOR Screen Rate, an Interest Period which shall not be available at the applicable time.
  
“Incremental Amount”: at any time, an amount not to exceed:
 
(a)           the greater of (i) $500,000,000 and (ii) 100% of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1; plus
 
(b)           the aggregate principal amount of the sum of (i) voluntary prepayments of Term Loans and Incremental Equivalent Debt and/or permanent reductions of the Revolving Commitments or commitments in respect of any Incremental Equivalent Debt and (ii) the consideration paid in connection with any purchases of any Loans outstanding hereunder pursuant to Section 4.13(b) or Section 11.6(g) by an Affiliated Lender from time to time, except, in each case, to the extent (x) such prepayments were funded with the proceeds of long-term Indebtedness (other than revolving credit facilities) or (y) such Term Loans or Incremental Equivalent Debt were incurred pursuant to the Ratio Incremental Amount (together with clause (a) above, the “Fixed Incremental Amount”, which shall be reduced by previously used amounts of the Fixed Incremental Amount for Incremental Facilities and Incremental Equivalent Debt); plus
 
(c)           an unlimited amount if, after giving effect to the incurrence of any Incremental Facilities or Incremental Equivalent Debt (assuming for this purpose that the Incremental Revolving Commitments being Incurred at the time of such calculation are fully drawn and assuming for this purpose that any unsecured Indebtedness incurred under the Ratio Incremental Amount or pursuant to Section 8.2(s) are deemed to be secured ratably with the Facilities for purposes of calculating the Consolidated Senior Secured Net Leverage Ratio), the Consolidated Senior Secured Net Leverage Ratio is less than or equal to 3.00:1.00 (the “Ratio Incremental Amount”); provided that for purposes of this clause (c), if the proceeds of the relevant Incremental Facility or Incremental Equivalent Debt will be applied to finance a Limited Condition Acquisition, the Ratio Incremental Amount will be determined in accordance with Section 1.3. It is understood and agreed that if the applicable incurrence test is satisfied on a pro forma basis after giving effect to any Incremental Facility or Incremental Equivalent Debt in lieu thereof, such Incremental Facility or Incremental Equivalent Debt, as applicable, may be incurred under the Ratio Incremental Amount regardless of whether there is capacity under the Fixed Incremental Amount.
 
Incremental Amendments”:  as defined in the First Amendment Agreement.
 
Incremental Commitment Agreement”:  an agreement delivered by an Incremental Lender, in form and substance reasonably satisfactory to the Administrative Agent and accepted by the Loan PartiesBorrower, by which an Incremental Lender confirms its Incremental Commitment in accordance with the terms of Section 4.17.
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Incremental Commitments”:  as defined in Section 4.17(a).
 
Incremental Effective Date”:  as defined in the First Amendment Agreement.
 
Incremental Effective Date Revolving Lender”:  as defined in the First Amendment Agreement.
 
Incremental Effective Date Transactions”:  as defined in the recitals hereto.
 
“Incremental Equivalent Debt”:  as defined in Section 8.2(w).
 
Incremental Facilities”:  as defined in Section 4.17(a).
 
Incremental Lender”:  a Lender, Approved Fund or other Person that provides an Incremental Commitment.
 
Incremental Loans”:  as defined in Section 4.17(ca).
 
Incremental Revolving Commitments”:  as defined in Section 4.17(a).
 
Incremental Revolving Facility”:  as defined in Section 4.17(a).
 
Incremental Revolving Facility Lender”:  with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion of such Incremental Revolving Facility.
 
“Incremental Revolving Loans”:  as defined in Section 4.17(a).
 
Incremental Term Facility”:  as defined in Section 4.17(a).
 
Incremental Term Loan Commitments”:  as defined in Section 4.17(a).
 
Incremental Term Loans”: as defined in Section 4.17(c).
 
Incremental Tranche B-3 Term Lender”:  as defined in the First Amendment Agreement.
 
Incur”:  issue, assume, enter into any Guarantee Obligation in respect of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary of the Borrower (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary.  The accrual of interest or dividends, the accretion of accreted value, the accretion of amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness will not be deemed to be an Incurrence of Indebtedness.  Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
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“Incurrence-Based Amount”:  as defined in Section 1.3(c).
 
Indebtedness”:  of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables Incurred in the ordinary course of such Person’s business and Earnout Obligations), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, in each case, that have not been repaid, defeased or otherwise terminated, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such propertyexcluding trade accounts payable incurred in the ordinary course of business), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit or similar arrangements, (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person, except an Excluded Redemption Obligation, (h) all Guarantee Obligations of such Person in respect of obligations of others of the kind referred to in clauses (a) through (gf) above, (ih) all obligations of the kind referred to in clauses (a) through (hg) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation; provided, that the amount of such Indebtedness shall be limited to the lesser of such obligation and the value of the property subject to such Lien if such Person has not assumed or become liable for the payment of such obligation, (ji) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of Disqualified Capital Stock of such Person, and (kj) for the purposes of Sections 8.2 and 9(e) only, all obligations of such Person in respect of Hedge Agreements, but in each case in the above clauses excluding obligations under operating leases, Escrow Debt and obligations under employment contracts entered into in the ordinary course of business.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor.  The amount of the obligations of the Borrower or any Subsidiary in respect of any Hedge Agreement shall, at any time of determination and for all purposes under this Agreement, be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Hedge Agreement were terminated at such time giving effect to current market conditions notwithstanding any contrary treatment in accordance with GAAP.
 
Indemnified Liabilities”:  as defined in Section 11.5.
 
Indemnitee”:  as defined in Section 11.5.
 
Insolvency”:  with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
 
Insolvent”:  pertaining to a condition of Insolvency.
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Intellectual Property”:  the collective reference to all rights and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses and technology, know-how, trade secrets and proprietary information of any type, domain names and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
 
Intellectual Property Security Agreement”:  theeach Intellectual Property Security Agreement to be executed and delivered by each applicable Loan Party in accordance with Section 5.9 of the Amended and Restated Guarantee and Collateral Agreement.
 
Intercreditor Agreement”:  an intercreditor agreement substantially in the form of Exhibit K-1 hereto or such other form that is reasonably acceptable to the Administrative Agent.
 
Interest Payment Date”:  (a) as to any Base Rate Loan (other than any Swingline Loan), the last day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period, (d) as to any Loan (other than any Revolving Loan that is a Base Rate Loan and any Swingline Loan), the date of any repayment or prepayment made in respect thereof and (e) as to any Swingline Loan, the day that such Loan is required to be repaid.
 
Interest Period”:  as to any Eurodollar Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two, three or six or, if available to all Lenders under the relevant Facility, twelve12 months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, three or six or, if available to all Lenders under the relevant Facility, twelve12 months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent no later than 1:00 p.m., New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided, that, all of the foregoing provisions relating to Interest Periods are subject to the following:
 
(i)           if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
 
(ii)          the Borrower may not select an Interest Period under a particular Facility that would extend beyond the Revolving Termination Date or beyond the date final payment is due on the Term Loans, as applicable;
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(iii)         any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; and
 
(iv)         the Borrower shall select Interest Periods so as not to require a payment or prepayment of any Eurodollar Loan during an Interest Period for such Loan.
 
Interpolated  Rate”:  at any time, for any Interest Period, the rate per annum (rounded to the same number of  decimal places as the LIBOR Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between:  (a) the LIBOR Screen Rate (for the longest period for which the LIBOR Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which the LIBOR Screen Rate is available) that exceeds the Impacted Interest Period, in each case, as of 11:00 a.m., London time, on the Quotation Day for such Interest Period.  When determining the rate for a period which is less than the shortest period for which the LIBOR Screen Rate is available, the LIBOR Screen Rate for purposes of paragraphclause (a) above shall be deemed to be the overnight screen rate where "overnight screen rate" means, the overnight rate for such currency determined by the Administrative Agent from such service as the Administrative Agent may select.
 
Investments”:  as defined in Section 8.7.
 
Issuing Lender”:  as the context may require, (a) each Lender listed in Schedule EC in Exhibit C of the SecondThird Amendment Agreement, acting through any of its Affiliates or branches, in its capacity as an issuer of Letters of Credit hereunder, (b) with respect to each Existing Letter of Credit, the Lender that issued such Existing Letter of Credit, and (c) any other Lender that may become an Issuing Lender pursuant to Section 3.7(c), with respect to Letters of Credit issued by such Lender.  Each Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates or branches of such Issuing Lender, in which case the term “Issuing Lender” shall include any such Affiliate or branch with respect to Letters of Credit issued by such Affiliate or branch.
 
Joint Bookrunner”:  (i) prior to the Incremental Effective Date, each of J.P. Morgan Securities LLC, Barclays Bank PLC, Fifth Third Bank, Goldman Sachs Lending Partners LLC, Deutsche Bank Securities Inc. and CS Securities (USA) LLC, each in its capacity as a joint bookrunner of the Facilities hereunder, (ii) after the Incremental Effective Date and prior to the Refinancingafter the Third Amendment Effective Date, each of JPMorgan Chase Bank, N.A., BofA Securities, Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Credit Suisse Loan Funding LLC, Fifth Third Bank, Goldman Sachs Lending Partners LLC, and U.S. Bank National Association and CS Securities (USA) LLC, each in its capacity as a joint bookrunner under the First Amendment Agreement and (iii) after the Refinancing Effective Date, each of JPMorgan Chase Bank, N.A., Barclays Bank PLC, Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated (or such other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially
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all of Bank of America’s Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), Credit Suisse Securities (USA) LLC, U.S. Bank National Association, Fifth Third Bank and Sumitomo Mitsui Banking Corporation..
 
Junior Debt”:  as defined in Section 8.8.
 
Latest Maturity Date”:  as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Loan, any Refinancing Term Loan, any Refinancing Revolving Loan or any Refinancing Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.
 
L/C Commitment”:  as to each Issuing Lender, the amount listed next to its name in Schedule EC in Exhibit C of the FirstThird Amendment Agreement, as the same may be reduced or increased from time to time in accordance herewith.
 
L/C Fee Payment Date”:  the last day of each March, June, September and December and the last day of the Revolving Commitment Period.
 
L/C Obligations”:  at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.11.  The L/C Obligations as to any Revolving Lender shall be such Lender’s Revolving Percentage of the L/C Obligations then outstanding.
 
L/C Participants”:  the collective reference to all the Revolving Lenders (other than the Issuing Lenders in their capacities as such).
 
L/C Subcommitment Amount”:  $75,000,000.
 
“Latest Maturity Date”:  as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Loan, any Refinancing Term Loan, any Refinancing Revolving Loan or any Refinancing Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.
 
Lead Arranger”:  (i) prior to the Incremental Effective Date, J.P. Morgan Securities LLC and (ii) after the Incremental Effective Date, JPMorgan Chase Bank, N.A.
 
“Leasehold Cost Overruns”:  cost funded by the Borrower or one of its Restricted Subsidiaries in connection with leasehold improvements financed by a lessor of any premises leased by the Borrower or one of its Restricted Subsidiaries.
 
Lender Vote/Directive”:  as defined in Section 11.21.
 
Lender Consent”:  as defined in the Amendment and Restatement Agreement.
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Lenders”:  as defined in the preamble hereto (including for the avoidance of doubt, the New Term Lenders, the Incremental Tranche B-3 Term Lenders, the Refinancing Tranche B-4 Term Lenders, the Refinancing Tranche B-5 Term Lenders, the Tranche B-6 Term Lenders, the Incremental Effective Date Revolving Lenders, the Refinancing Effective Date Revolving Lenders, the Third Amendment Effective Date Revolving Lenders and any Issuing Lender); provided,. that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender.
 
Letters of Credit”:  as defined in Section 3.7(a).
 
LIBOR Screen Rate”:  for any day and time, with respect to any Eurodollar Loan for any applicable currency and for any Interest Period, the London interbank offered rate administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate for the relevant currency) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on either of sucha Reuters pagespage or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall befrom time to time as selected by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided, that, if anythe LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
 
Lien”:  any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).
 
Limited Condition Acquisition”:  any Permitted Acquisition or other permitted Investment that is not conditioned upon receipt of financing.
 
Loan”:  any loan made by any Lender pursuant to this Agreement, including, for the avoidance of doubt, (a) any reference to Tranche B-1 Term Loans and Tranche B-2 Term Loans after giving effect to the Restatement Effective Date Transactions, (b) any reference to Tranche B-3 Term Loans and Revolving Loans after giving effect to the Incremental Effective Date Transactions and, (c) any reference to Tranche B-4 Term Loans, Tranche B-5 Term Loans and Revolving Loans after giving effect to the Refinancing Effective Date Transactions and (d) any reference to Tranche B-6 Term Loans and Revolving Loans after giving effect to the Third Amendment Effective Date Transactions.
 
Loan Documents”:  this Agreement, the Amendment and Restatement Agreement, the First Amendment Agreement, the Second Amendment Agreement, the Third Amendment Agreement, the Security Documents, the Notes, each other agreement and each other material certificate or document executed by any Group MemberLoan Party and delivered to anythe Administrative Agent or any Lender pursuant to this Agreement, the First Amendment
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Agreement, the Second Amendment Agreement, the Third Amendment Agreement or any Security Document.
 
Loan Parties”:  each Group Member that is a party to a Loan Documentthe collective reference to the Borrower and the Subsidiary Guarantors.
 
Majority Facility Lenders”:  with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche B-1 Term Facility, Tranche B-2 Term Facility, Tranche B-3 Term Facility, Tranche B-4 Term Facility, Tranche B-5 Term Facility, the Tranche B-6 Term Facility or the Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving Facility, prior to any termination of the Revolving Commitments, the holders of more than 50% of the Total Revolving Commitments).  The Loans and Commitments of any Defaulting Lender shall be disregarded in determining Majority Facility Lenders with respect to any Facility at any time.  The Loans and Commitments of any Affiliated Lender shall, for purposes of this definition, be subject to Section 11.21.
 
Management Advances”:  promissory notes issued on an unsecured basis by the Borrower to a Management Investor in accordance with the Management Stock Agreements to fund all or a portion of the purchase price paid in connection with the repurchase by the Borrower of its Capital Stock from such Management Investor, if such repurchase is occasioned by the death, disability, or retirement of such Management Investor.
 
Management Investors”:  present or former officers, employees or directors of a Group Member who beneficially own outstanding capital stock of the Borrower.
 
Management Stock Agreements”:  any subscription agreement or stockholders agreement between the Borrower and any Management Investor.
 
Material Adverse Effect”:  a material adverse effect on (a) the business, assets, property, financial condition or results of operations of the Group Members, taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the AgentsAdministrative Agent or the Lenders hereunder or thereunder.
 
Material Domestic Subsidiary”:  each Domestic Subsidiary (i) which, as of the most recent fiscal quarter of the Borrowerwhich, for the most recently ended period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 7.1, contributed greater than two and a half percent (2.5%) of the Borrower’s (i) Consolidated EBITDA for such period or (ii) which contributed greater than two and a half percent (2.5%) of the Borrower’s Consolidated Total Assets as of the end of such dateperiod.
 
Material Foreign Subsidiary”:  each Foreign Subsidiary (i) which, as of the most recent fiscal quarter of the Borrowerwhich, for the most recently ended period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 7.1, contributed greater than two and a half percent (2.5%) of the Borrower’s (i) Consolidated EBITDA for such period or (ii) which contributed greater than two and a half percent (2.5%) of the Borrower’s Consolidated Total Assets as of the end of such dateperiod.
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Material Subsidiary”:  each Material Domestic Subsidiary and each Material Foreign Subsidiary.
 
Materials of Environmental Concern”:  any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any substances, materials or wastes, defined, listed or regulated as hazardous or toxic under any Environmental Law, including polychlorinated biphenyls,       urea-formaldehyde       insulation,        asbestos,        pollutants,        contaminants, radioactivityradioactive materials, and any other substances that are regulated pursuant to or could give rise to liability under any Environmental Law.
 
Modification”:  a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent.
 
“Moody’s”:  Moody’s Investors Service, Inc. and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
 
Mortgaged Properties”:  the owned real properties listed on Schedule F to the Second1.1(a) in Exhibit D of the Third Amendment Agreement, as to which the Administrative Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages.
 
Mortgages”:  each of the mortgages, deeds to secure debts and deeds of trust made by any Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit D (with such changes thereto as (a) shall be advisable under the law of the jurisdiction in which such mortgage, deed to secure debt or deed of trust is to be recorded and (b) do not have a significant adverse economic effect on any Loan Party), as amended, restated, modified, supplemented or extended from time to time.
 
Multiemployer Plan”:  a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
 
Net Cash Proceeds”:  (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or by the Disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received, and Cash Equivalents at their maturity) of such Asset Sale or Recovery Event, net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other reasonable fees and expenses actually incurred in connection therewith and net of taxes paid, payable or reasonably estimated to be payable as a result thereof  and (b) in connection with any issuance or sale of Capital Stock or any Incurrence of Indebtedness, the cash proceeds received from such issuance or Incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other reasonable fees and expenses actually incurred in connection therewith; provided, that amounts provided as a reserve, in accordance with GAAP, against any liability under any indemnification obligations or purchase price adjustment associated with any of the foregoing
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shall not constitute Net Cash Proceeds except to the extent and at the time any such amounts are released from such reserve.
 
New Term Lenders”:  as defined in the Amendment and Restatement Agreement.
 
New Term Loans”:  as defined in the Amendment and Restatement Agreement.
 
“Non-Consenting Lender”:  as defined in Section 4.13(a).
 
Non-Defaulting Lender”:  any Lender other than a Defaulting Lender.
 
Non-Excluded Taxes”:  as defined in Section 4.10(ab).
 
Non-Extending Lender”:  as defined in Section 4.18(de).
 
Non-public Information”:  information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD of the Securities Act 1933, as amended.
 
Non-U.S. Lender”:  as defined in Section 4.10(de).
 
Notes”:  the collective reference to any promissory note evidencing Loans.
 
NYFRB”:  the Federal Reserve Bank of New York.
 
NYFRB Rate”:  for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
 
Obligations”:  the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower or any Restricted Subsidiary (solely with respect to any Specified Hedge Agreement or Specified Cash Management Arrangement) to anythe Administrative Agent or to any Lender (or, in the case of Specified Hedge Agreements or Specified Cash Management Arrangements, any Qualified Counterparty), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter Incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Hedge Agreement, any Specified Cash Management Arrangements or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses, overdraft charges (including all reasonable fees,
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charges and disbursements of counsel to anythe Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise; provided, that (i) obligations of the Borrower or any Restricted Subsidiary under any Specified Hedge Agreement or Specified Cash Management Arrangement shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or the Borrower or the Subsidiary Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements or Specified Cash Management Arrangements.  Notwithstanding the foregoing, the Obligations shall not include any Excluded Swap Obligations.
 
OID”:  as defined in Section 4.17(c).
 
Organizational Documents”:  as to any Person, its certificate or articles of incorporation and by‑laws if a corporation, its partnership agreement if a partnership, its limited liability company agreement if a limited liability company, or other organizational or governing documents of such Person.
 
“Other Applicable Indebtedness”:  Indebtedness permitted hereunder that is secured on a pari passu basis with the Obligations.
 
Other Representatives”:  the Lead Arranger and, the Joint Bookrunners and the Documentation Agents.
 
Other Taxes”:  any and all present or future stamp, court or documentary, intangible, recording or filing taxes or any other excise taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except for any such Taxes described in clause (i) of the definition of Excluded Taxes imposed with respect to an assignment.
 
Overnight Bank Funding Rate”:  for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).
 
Parent”: KAR Holdings II, LLC, a Delaware limited liability company or any otherany Person of which the Borrower at any time is or becomes a Subsidiary after the RestatementThird Amendment Effective Date.
 
Pari Debt Intercreditor Agreement”:  an intercreditor agreement substantially in the form of Exhibit K-2 hereto or such other form that is reasonably acceptable to the Administrative Agent.
 
Participant”:  as defined in Section 11.6(c)(i).
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Participant Register”:  as defined in Section 11.6(c)(iii).
 
Patriot Act”:  as defined in Section 11.18.
 
PBGC”:  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
 
Permitted Acquisition”:  any acquisition by purchase or otherwise of all or substantially all of the business, assets or at least a majority of the Capital Stock (other than directors’ qualifying shares) of any Person or a business unit of a Person so long as, subject to Section 1.3, (a) no Event of Default has occurred and is continuing at the time such acquisition is made and no Event of Default would result from the completion of such acquisition, (b) on a pro forma basis after giving effect to such acquisition, all related transactions (including the Incurrence and use of proceeds of all Indebtedness Incurred in connection therewith) and all other acquisitions and dispositions and related transactions at any time completed as if completed on the first day of the twelve12-month period ending on the most recent Test Date,  (i) the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1, as originally in effect or amended in accordance with the date hereof, was required on the Test Date) and (ii) the Consolidated Net Leverage Ratio on the Test Date would not have exceeded 6.0 to 1.00:1.00 and (c) if the aggregate consideration for such acquisition is more than $25,000,000, the Borrower delivers to the Administrative Agent a certificate of a Responsible Officer demonstrating in reasonable detail that the pro forma tests in clause (b) above are satisfied.
 
Permitted Encumbrances”:  has the meaning specified in the Mortgages.
 
Permitted Exchange”:  an exchange of real property of the Borrower or any Restricted Subsidiary (other than Equity Interests or other Investments) which qualifies as a like kind exchange pursuant to and in compliance with Section 1031 of the Code or any other substantially concurrent exchange of real property by the Borrower or any Restricted Subsidiary (other than Equity Interests or other Investments) for real property (other than Equity Interests or other Investments) of another person; provided that (a) such real property is useful to the business of Borrower or such Restricted Subsidiary, (b) Borrower or such Restricted Subsidiary shall receive reasonably equivalent value for such real property and (c) such assets will be received by the Borrower or such Subsidiary substantially concurrently with its delivery of assets to be exchanged.
 
Permitted Foreign Entities”:  any First Tier Foreign Subsidiary which is a Restricted Subsidiary.
 
Permitted Foreign Investment”:  an Investment made by the Borrower or another Loan Party to any Permitted Foreign Entity or any other Wholly-OwnedWholly Owned Foreign Subsidiary after the Restatement Effective Date; provided that, the proceeds of such Investment are used by such Permitted Foreign Entity or Wholly-OwnedWholly Owned Foreign Subsidiary, as applicable, solely to directly, or indirectly through any Foreign Subsidiary of such Permitted Foreign Entity or Wholly-OwnedWholly Owned Foreign Subsidiary, finance a Permitted Acquisition.
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Permitted Investors”:  collectively, any Management Investors and all of their respective Permitted Transferees.
 
Permitted Junior Refinancing Debt”:  secured Indebtedness Incurred by the Borrower or any other Loan Party in the form of one or more series of secondjunior lien secured notes or junior lien loans; provided, that (i) such Indebtedness is secured by the Collateral on a second lien, subordinatedjunior priority basis to the Obligations hereunder and the obligations in respect of any Permitted Pari Passu Refinancing Debt and is not  secured by any property or assets of the Borrower or any Restricted Subsidiary of the Borrower other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, Incremental Loans, Refinancing Term Loans, outstanding Revolving Loans or outstanding Refinancing Revolving Loans, (iii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity Date at the time such Indebtedness is Incurred, (iv) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (v) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the Subsidiary Guarantors, and (vi) a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to an Intercreditor Agreement or, if an Intercreditor Agreement has previously been entered into in connection with any other Permitted Pari Passu Refinancing Debt, execute a joinder to the then existing Intercreditor Agreement in substantially the form provided in the Intercreditor Agreement and (vii) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (iii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (iii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, nothing in this definition shall prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.  Permitted Junior Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
 
Permitted Liens”:  any Liens permitted by Section 8.3.
 
Permitted Pari Passu Refinancing Debt”:  any secured Indebtedness Incurred by the Borrower or any other Loan Party in the form of one or more series of senior secured notes; provided, that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations hereunder and is not secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, Incremental Loans, Refinancing Term Loans, outstanding Revolving Loans or outstanding Refinancing Revolving Loans, (iii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity Date at the time such Indebtedness is Incurred, (iv) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (v) such Indebtedness is not guaranteed by any
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Restricted Subsidiaries other than the Subsidiary Guarantors and, (vi) a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to an Intercreditor Agreement or, if an Intercreditor Agreement has previously been entered into in connection with any other Permitted Pari Passu Refinancing Debt, execute a joinder to the then existing Intercreditor Agreement in substantially the form provided in the Intercreditor Agreement and (vii) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (iii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (iii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, nothing in this definition shall prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.  Permitted Pari Passu Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
 
Permitted Refinancing”:  with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided, that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended and (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole.
 
Permitted Securitization”:  the Existing Securitization or any other Securitization that complies with the following criteria:  (a) the cash portion of the initial purchase price paid by the Securitization Subsidiary at closing for the Securitization Assets is at least 70% of the book value of the Securitization Assets at such time and (b) the Seller’s Retained Interest and all proceeds thereof shall constitute Collateral hereunder if the seller is a Loan Party and in such event all necessary steps to perfect a security interest in such Seller’s Retained Interest by the Administrative Agent are taken by the Group Members.
 
Permitted Transferees”:  in the case of any Management Investors, (i) his or her heirs, executors, administrators, testamentary trustees, legatees or beneficiaries, (ii) his or her spouse, parents, siblings, members of his or her immediate family (including adopted children) or direct lineal descendants or (iii) a trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only the Management Investor, as the case may be,
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and his or her spouse, parents, siblings, members of his or her immediate family (including adopted children) and/or direct lineal descendants.
 
Permitted Unsecured Refinancing Debt”:  unsecured Indebtedness Incurred by the Borrower or any Subsidiary Guarantor in the form of one or more series of senior or subordinated unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, Incremental Loans, Refinancing Term Loans, outstanding Revolving Loans or outstanding Refinancing Revolving Loans, (ii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity Date at the time such Indebtedness is Incurred, (iii) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the Subsidiary Guarantors and, (iv) such Indebtedness is not secured by any Lien on any property or assets of Borrower or any Restricted Subsidiary and (v) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (ii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (ii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, nothing in this definition shall prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provision.  Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
 
Person”:  an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
 
Plan”:  at a particular time, any employee pension benefit plan that is covered by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
 
Platform”:  as defined in Section 7.2(f).
 
Pledged Notes”:  as defined in the Amended and Restated Guarantee and Collateral Agreement.
 
Pledged Stock”:  as defined in the Amended and Restated Guarantee and Collateral Agreement.
 
Pricing Grid”:  (a)  with respect to Revolving Loans and Swingline Loans:
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Category

 

Consolidated Senior Secured Net Leverage Ratio

 

Applicable Margin for Base Rate Revolving Loans and Swingline Loans

 

Applicable Margin for Eurodollar Rate Revolving Loans

1   > 2.75:1.00   1.25%   2.25%
2   < 2.75:1.00 and > 2.00:1.00   1.00%   2.00%
3   < 2.00:1.00   0.75%   1.75%

(b)          with respect to the Tranche B-1 Term Loans, the Applicable Margin for Eurodollar Rate Term Loans shall be 2.50% and the Applicable Margin for Base Rate Term Loans shall be 1.50%.
 
(c) with respect to the Tranche B-2 Term Loans, the Applicable Margin for Eurodollar Rate Term Loans shall be 3.1875% and the Applicable Margin for Base Rate Term Loans shall be 2.1875%.
 
(d) with respect to the Tranche B-3 Term Loans, the Applicable Margin for Eurodollar Rate Term Loans shall be 3.50% and the Applicable Margin for Base Rate Term Loans shall be 2.50%.
 
(e) with respect to the Tranche B-46 Term Loans, the Applicable Margin for Eurodollar Rate Term Loans shall be 2.25% and the Applicable Margin for Base Rate Loans shall be 1.25%.; and
 
(f) with respect to the Tranche B-5 Term Loans, the Applicable Margin for Eurodollar Rate Term Loans shall be 2.50% and the Applicable Margin for Base Rate Loans shall be 1.50%.
 
(c)           (g) the Commitment Fee Rate will be determined as set forth in the definition of “Commitment Fee Rate”, by reference to the following:
 
Category
 
Consolidated Senior Secured Net
Leverage Ratio
 
Commitment Fee
Rate
1
 
> 2.75:1.00
 
0.35%
2
 
< 2.75:1.00 and > 2.00:1.00
 
0.30%
3  
< 2.00:1.00
 
0.25%

“Prime Rate”:  the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors).
 
Projections”:  as defined in Section 7.2(b).
 
Properties”:  as defined in Section 5.17(a).
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Property”:  any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Capital Stock.
 
“PTE”:  a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
 
PTO”:  as defined in Section 5.19(c).
 
Qualified Counterparty”:  with respect to any Specified Hedge Agreement or Specified Cash Management Arrangement, any counterparty thereto that, (i) at or before the time such Specified Hedge Agreement or Specified Cash Management Arrangement was entered into or (ii) on or after the Restatement Effective Date, was a Lender or the Administrative Agent or an affiliate of a Lender.
 
Quotation Day”:  with respect to any Eurodollar Loan for any Interest Period, two Business Days prior to the commencement of such Interest period the Business DayPeriod (unless, in each case, market practice differs in the relevant market where the Eurodollar Rate for such currency is to be determined, in which case the Quotation Day will be determined by the Administrative Agent in accordance with market practice in such market (and if quotations would normally be given on more than one day, then the Quotation Day will be the last of those days)).
 
“Ratio Incremental Amount”: as defined in the definition of “Incremental Amount.”
 
Recovery Event”:  any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member, other than (x) any such settlement or payment arising by reason of any loss of revenues or interruption of business or operations caused thereby and (y) any such settlement or payment constituting reimbursement or compensation for amounts previously paid by any Group Member in respect of the theft, loss, destruction, damage or other similar event relating to any such claim or proceeding.
 
“Reference Banks”:  in relation to the Eurodollar Rate, the principal London offices of up to 3 certain financial institutions to be mutually agreed by the Administrative Agent and the Borrower.
 
“Reference Bank Rate”:  the arithmetic mean of the rates (rounded upwards to four decimal places) supplied to the Administrative Agent at its request by the Reference Banks (as the case may be) as of 11:00 a.m. London time on the Quotation Day for Loans in Dollars and the applicable Interest Period; provided, that, if any Reference Bank Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
 
Refinanced Debt”:  as defined in the definition of “Credit Agreement Refinancing Indebtedness.”
 
Refinancing 2017 Amendments”:  as defined in the Second Amendment Agreement.
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Refinancing Amendment”:  an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being Incurred pursuant thereto, in accordance with Section 4.19.
 
Refinancing Effective Date”:  as defined in the Second Amendment Agreement.
 
Refinancing Effective Date Revolving Lenders”:     as defined in the Second Amendment Agreement.
 
Refinancing Effective Date Transactions”: as defined in the recitals hereto.
 
Refinancing Revolving Commitments”:  one or more tranches ofthe revolving credit commitments hereunder that result from a Refinancing Amendment.
 
Refinancing Revolving Loans”:  the Revolving Loans made pursuant to any Refinancing Revolving Commitment.
 
Refinancing Term Commitments”:  one or more Tranches of term loansloan commitments hereunder that result from a Refinancing Amendment.
 
Refinancing Term Loans”:  one or more Tranches of Term Loans that result from a Refinancing Amendment.
 
Refinancing Tranche B-4 Term Lender”: as defined in the Second Amendment Agreement.
 
Refinancing Tranche B-5 Term Lender”: as defined in the Second Amendment Agreement.
 
Register”:  as defined in Section 11.6(b)(iv).
 
Registered Equivalent Notes”:  with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same Guarantee Obligation) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
 
Regulation T”:  Regulation T of the Board as in effect from time to time.
 
Regulation U”:  Regulation U of the Board as in effect from time to time.
 
Regulation X”:  Regulation X of the Board as in effect from time to time.
 
Reimbursement Obligation”:  the obligation of the Borrower to reimburse each Issuing Lender pursuant to Section 3.11 for amounts drawn under Letters of Credit.
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Reinvestment Deferred Amount”:  with respect to any Reinvestment Event, an amount equal to the aggregate Net Cash Proceeds received by any Group Member in connection therewith that are notwould have otherwise been required to be applied to prepay the Term Loans or reduce the Revolving Commitments pursuant to Section 4.2 as a result of(b)(i) but for the delivery of athe Reinvestment Notice.
 
Reinvestment Event”:  any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.
 
Reinvestment Notice”:  a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Restricted Subsidiary) intends to use an amount equal to all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire, improve or repair fixed or capital assets useful in its business, or to complete a Permitted Acquisition.
 
Reinvestment Prepayment Amount”:  with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire, improve or repair fixed or capital assets useful in the Borrower’s business, to acquire a brand or trademark and related assets or to complete a Permitted Acquisition.
 
Reinvestment Prepayment Date”:  with respect to any Reinvestment Event the date occurring eighteen (18) months after the receipt by the Borrower of proceeds relating to such Reinvestment Event (or the 180th day thereafter if the Borrower or any of its Restricted Subsidiaries has entered into a legally binding commitment to apply such proceeds in accordance with the applicable Reinvestment Notice).
 
Related Persons”:  with respect to any specified Person, such Person’s Affiliates and the respective officers, directors, employees, attorneys, agents and advisors of such Person and such Person’s Affiliates.
 
Reorganization”:  with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
 
Reportable Event”:  any of the events set forth in Section 4043(b) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043requirement is waived by regulation in effect as of the date hereof.
 
Repricing Transaction”:  as defined in Section 4.1(c).(i) prepayment or refinancing of all or a portion of the Term Loans concurrently with the Incurrence by the Borrower of any long-term bank debt financing or any other financing similar to the Term Loans having a lower All-In Yield than the All-In Yield applicable to the Term Loans and (ii) any amendment which reduces the All-In-Yield applicable to the Term Loans; provided that “Repricing Transaction” shall not include (x) any Transformative Acquisition or (y) a transaction that results in a Change of Control.
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Required Lenders”:  at any time, the holders of more than 50% of the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and (ii) the Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Revolving Extensions of Credit then outstanding.  The Loans and Commitments of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.  The Loans and Commitments of any Affiliated Lender shall, for purposes of this definition, be subject to Section 11.21.
 
Requirement of Law”:  as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
 
Reserved Funds”:  for any fiscal year of the Borrower, amounts committed to be paid but not expended in such fiscal year on account of Capital Expenditures, Investments and Permitted Acquisitions if the Borrower or any of its Restricted Subsidiaries has entered into a legally binding commitment to complete such project within 180 days following such fiscal year.
 
Responsible Officer”:  with respect to any Person, the chief executive officer, president or, vice president, chief financial officer of the Borrower, but in any event, with respect to financial matters, the chief financial officer of the Borrower., corporate secretary or assistant secretary, manager, director or duly appointed attorney-in-fact or similar Person or any other person designated by the board of directors or managing officers or other appropriate governing body of such Person, as applicable, in a resolution.
 
Restatement Effective Date”:  March 11, 2014.
 
Restatement Effective Date Transactions”:  as defined in the recitals hereto.
 
Restricted Payments”:  as defined in Section 8.6.
 
Restricted Subsidiary”:  any Subsidiary of the Borrower other than an Unrestricted Subsidiary.  The Board of Directors of the Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that immediately prior and immediately after giving effect to such designation (x) the Borrower is would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) on a pro forma basis after giving effect to such designation and all related transactions at any time completed as if completed on the first day of the twelve12-month period ending on the most recent Test Date,  the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1, as originally in effect or amended in accordance with the date hereof, was required on the Test Date) and (y) no Default or Event of Default hasshall have occurred and isbe continuing.  Any such designation by the Board of Directors shall be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a copy of the resolution of the Borrower’s Board of Directors giving effect to such designation and a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing provisions.
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Revolving Commitment”:  as to any Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed, (a) in the case of Lenders party hereto as of the RestatementThird Amendment Effective Date, the Incremental Effective Date or the Refinancing Effective Date, as applicable, such Lender’s Revolving Commitment Allocation and (b) in the case of Lenders that become parties hereto after such datethe Third Amendment Effective Date, the amount set forth in the Assignment and Assumption by which such Lender became a party hereto, in each case, as the same may be changed from time to time pursuant to the terms hereof.  The original amount of the Total Revolving Commitments (i) as of the RestatementThird Amendment Effective Date is $250,000,000, (ii) as of the Incremental Effective Date is $300,000,000 and (iii) as of the Refinancing Effective Date is $350,000,000, as may be subsequently increased by any Incremental Revolving Commitment325,000,000.
 
Revolving Commitment Allocation”:  (i) as of the Restatement Effective Date, the Revolving Commitments of each Lender as set forth on Schedule 1.1(f) hereto, (ii) as of the IncrementalThird Amendment Effective Date, the Revolving Commitments of each Lender as set forth in Schedule B of the First Amendment Agreement and (iii) as of the Refinancing Effective Date, the Revolving Commitments of each Lender as set forth in Schedule C of the Secondin Exhibit C of the Third Amendment Agreement.
 
Revolving Commitment Period”:  the period from and including the Restatement Effective Date up to but excluding the Business Day preceding the Revolving Termination Date.
 
Revolving Extensions of Credit”:  as to any Revolving Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then outstanding, (b) such Lender’s Revolving Percentage of the L/C Obligations then outstanding and (c) such Lender’s Revolving Percentage of the aggregate principal amount of Swingline Loans then outstanding.
 
Revolving Facility”:  as defined in the definition of “Facility”.
 
Revolving Lender”:  each Lender that has a Revolving Commitment or that holds Revolving Loans (including, for the avoidance of doubt, each RefinancingThird Amendment Effective Date Revolving Lender).
 
Revolving Loan Joinder”:  as defined in the Amendment and Restatement Agreement.
 
Revolving Loans”:  as defined in Section 3.1(cb).
 
Revolving Percentage”:  as to any Revolving Lender at any time, the percentage which such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments (or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the aggregate principal amount of the Revolving Loans then outstanding).
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Revolving Termination Date”:  the earlier of (a) the fifth anniversary of the IncrementalThird Amendment Effective Date and (b) the date on which the Revolving Commitments are terminated pursuant to any provision of this Agreement.
 
“S&P”:  Standard & Poor’s Ratings Services and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
 
Sanctioned Country”:  at any time, a country or territory which is the subject or target of anycomprehensive Sanctions (as of the Third Amendment Effective Date, Cuba, the Crimea region, Iran, North Korea and Syria).
 
Sanctioned Person”:  at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned 50 % or more or controlled by any such Person.
 
Sanctions”:  economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
 
SEC”:  the Securities and Exchange Commission, any successor thereto and otherwise any analogous Governmental Authority.
 
Second Amendment Agreement”:     that certain Incremental Commitment Agreement and Second Amendment, dated as of May 31, 2017, by and among the Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
 
Secured Obligations”:    in the case of the Borrower, the Obligations and in the case of any other Loan Party, the obligations of such Loan Party under the Guarantyas defined in the Amended and Restated Guarantee and Collateral Agreement and the other Loan Documents to which it is a party.
 
Secured Parties”:  as defined in the Amended and Restated Guarantee and Collateral Agreement.
 
“Securities Act”: the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 
Securitization”:  any transaction or series of transactions entered into by any Group Member pursuant to which such Group Member sells, conveys, assigns, grants an interest in or otherwise transfers to a Securitization Subsidiary, Securitization Assets (and/or grants a security interest in such Securitization Assets transferred or purported to be transferred to such Securitization Subsidiary), and which Securitization Subsidiary finances the acquisition of such Securitization Assets (i) with cash, (ii) the issuance to such Group Member of Seller’s Retained
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Interests or an increase in such Seller’s Retained Interests, (iii) with proceeds from the sale or collection of Securitization Assets, or (iv) in the case of a Canadian Securitization, with proceeds from the sale or issuance of Securitization Asset backed securities or other interests therein.
 
Securitization Assets”:  the collective reference to (i) US Dollar-denominated finance receivables of AFC – US of the type sold by AFC – US in the Existing Securitization and related assets of AFC – US sold in the Existing Securitization and other US Dollar-denominated receivables of AFC – US arising in the ordinary course of business and receivables and related assets related to the rental portfolio of AFC – US, and (ii) Canadian Dollar-denominated finance receivables of AFC – Canada and related assets of AFC – Canada.
 
Securitization Subsidiary”:  a Person (including, with respect to any Canadian Securitization, any business trust) to which a Group Member sells, conveys, transfers or grants a security interest in Securitization Assets, and which Person is formed (or, in the case of any business trust, the applicable series or other comparable tranche of such business trust is designated or otherwise credited) for the limited purpose of effecting one or more securitizations involving the Securitization Assets or, in the case of a Canadian Securitization, other income producing financial assets, and related activities.
 
Security Documents”:  the collective reference to the Amended and Restated Guarantee and Collateral Agreement, the Intellectual Property Security Agreements, the Amended and Restated Guaranty Agreement, Modifications, the Mortgages and all other security documents hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document.
 
Seller’s Retained Interest”:  (i) in respect of a Securitization, the debt or equity interests held by Group Members in a Securitization Subsidiary to which Securitization Assets have been transferred, including any such debt or equity received as consideration for or as a portion of the purchase price for the Securitization Assets transferred, or any other instrument through which any Group Member has rights to or receives distributions in respect of any residual or excess interest in the Securitization Assets, and (ii)  in respect of a Canadian Securitization, all amounts which are payable or which may become payable as consideration for or as a portion of the purchase price for the Securitization Assets transferred, including any such amounts which any Group Member receives or has rights to receive as distributions in respect of any residual or excess interest in the Securitization Assets.
 
“Senior Notes”: the 5.125% senior notes due 2025 issued by the Borrower pursuant to the Senior Notes Indenture.
 
“Senior Notes Indenture”: the Indenture, dated as of May 31, 2017, by and among the Borrower, the guarantors from time to time party thereto and U.S. Bank National Association, as trustee.
 
Senior Representative”:  with respect to any series of Permitted Pari Passu Refinancing Debt or Permitted Junior Refinancing Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which
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such Indebtedness is issued, Incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
 
Single Employer Plan”:  any Plan that is covered by Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, but that is not a Multiemployer Plan.
 
Solvent”:  with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
 
Specified Cash Management Arrangement”:  any arrangement for treasury, depositary or cash management services (including any credit card, commercial card, merchant card or other stored value card services and any processing of payments and other administrative services with respect thereto) provided to the Borrower or any of its Restricted Subsidiaries by a Qualified Counterparty in connection with any transfer or disbursement of funds through an automated clearinghouse or on a same day or immediate or accelerated availability basis that has been designated as a Specified Cash Management Arrangement by notice from the Borrower to the Administrative Agent.  The designation by the Borrower of any such arrangement as a Specified Cash Management Arrangement shall not create in favor of the Qualified Counterparty that is a party thereto any rights in connection with the management, enforcement or release of any Collateral or any claim againstof the Obligations of the Borrower or any Subsidiary Guarantor under the Amended and Restated Guarantee and Collateral Agreement.  All treasury, depository and cash management services (including any credit card, commercial card, merchant card or other stored value card services and any processing of payments and other administrative services with respect thereto) now or at any time hereafter provided to the Borrower or any of its Restricted Subsidiaries by JPMorgan Chase Bank, N.A. in connection with any transfer or disbursement of funds through any automated clearinghouse or on a same day or immediate or accelerated availability basis are hereby designated by the Borrower as a Specified Cash Management Arrangement.
 
Specified Existing Tranche”:  as defined in Section 4.18(a).
 
Specified Hedge Agreement”:  any Hedge Agreement between the Borrower or any of its Restricted Subsidiaries and any Qualified Counterparty that has been designated as a Specified Hedge Agreement by notice from the Borrower to the Administrative Agent (it being
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understood that one notice with respect to a specified ISDA Master Agreement may designate all transactions thereunder as being “Obligations” under a Specified Hedge Agreement, without the need for separate notices for each individual transaction thereunder).  The designation by the Borrower of any Hedge Agreement as a Specified Hedge Agreement (a) shall constitute a representation and warranty by the Borrower that such Hedge Agreement is permitted by Section 8.11 (upon which such Qualified Counterparty shall be entitled to rely conclusively) and (b) shall not create in favor of the Qualified Counterparty that is a party thereto any rights in connection with the management, enforcement or release of any Collateral or any claim againstof the Obligations of the Borrower or any Subsidiary Guarantor under the Amended and Restated Guarantee and Collateral Agreement except to the extent expressly set forth in the Amended and Restated Guarantee and Collateral Agreement.
 
Standard Securitization Undertakings”:  representations, warranties, covenants, repurchase obligations and indemnities entered into by a Group Member which are customary for a seller or servicer of assets transferred in connection with a Securitization.
 
Statutory Reserve Rate”:  a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject with respect to the Adjusted LIBOEurodollar Rate, for “Eurocurrency” funding (currently referred to as “Eurocurrency Liabilities” in Regulation D).  Such reserve percentages shall include those imposed pursuant to such Regulation D.  Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
 
Subsidiary”:  as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower; provided, however, all such references to “Subsidiary” or to “Subsidiaries” shall not include any Securitization Subsidiary.
 
Subsidiary Guarantor”:  each Wholly Owned Subsidiary of the Borrower that is a Material Domestic Subsidiary (or any other Restricted Subsidiary designated by the Borrower as a Subsidiary Guarantor) and party to the Amended and Restated Guarantee and Collateral Agreement from time to time.  Notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary shall be required to be a Subsidiary Guarantor.
 
Swingline Commitment Amount”:  $90,000,00060,000,000.
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Swingline Exposure”: at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Lender at any time shall equal its Revolving Percentage of the aggregate Swingline Exposure at such time.

 

Swingline Lender”: JPMorgan Chase Bank, N.A., in its capacity as the lender of Swingline Loans.

 

Swingline Loans”: as defined in Section 3.3(a).

 

Swingline Participation Amount”: as defined in Section 3.4(c).

 

TaxesTarget Person”:  as defined in Section 4.10(a)8.7.

 

“Taxes”:  all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

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

 

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

 

Term Loan Joinder”: as defined in the Amendment and Restatement Agreement.

 

Term Loans”: collectively, Tranche B-1 Term Loans, Tranche B-2 Term Loans, Tranche B-3 Term Loans, Tranche B-4 Term Loans and, Tranche B-5 Term Loans and Tranche B-6 Term Loans.

 

Term Percentage”: as to any Term Lender at any time, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding.

 

Test Date”: at any time, the last day of the most recentrecently ended fiscal quarter for which the Borrower’s consolidated annual or quarterly financial statements are then available.

 

“Third Amendment Agreement”: that certain Third Amendment Agreement, dated as of September 19, 2019, by and among the Borrower, the other Loan Parties party thereto, the Lenders party thereto, the Issuing Lenders party thereto and the Administrative Agent.

 

“Third Amendment Effective Date”: as defined in the Third Amendment Agreement.

 

“Third Amendment Effective Date Amendments”: as defined in the Third Amendment Agreement.

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“Third Amendment Effective Date Revolving Lenders”: as defined in the Third Amendment Agreement.

 

“Third Amendment Effective Date Transactions”: as defined in the recitals hereto.

 

Third Party Assignee”: as defined in Section 11.6(ii)(E).

 

“Total L/C Commitments”: $50,000,000.

 

Total Revolving Commitments”: at any time, the aggregate amount of the Revolving Commitments then in effect.

 

Total Revolving Extensions of Credit”: at any time, the aggregate amount of the Revolving Extensions of Credit outstanding at such time.

 

Tranche”: each tranche of Loans and/or Commitments available hereunder. On the Restatement Effective Date there shall be three tranches comprising (i) Tranche B-1 Term Loans, (ii) Tranche B-2 Term Loans and (iii) the Revolving Loans. On the IncrementalThird Amendment Effective Date, after giving effect to the borrowings thereon and the related payment of Indebtedness hereunder, there shall be threetwo tranches of Loans comprising of (i) Tranche B-2 Term Loans, (ii) Tranche B-3 Term Loans and (iii) the Revolving Loans. On the Refinancing Effective Date, after giving effect to the borrowings thereon and the related payment of Indebtedness hereunder, there shall be three tranches of Loans comprising of (i) Tranche B-4 Term Loans, (ii) Tranche B-56 Term Loans and (iii) Revolving LoansCommitments.

 

Tranche B-1 Term Facility”: as defined in the definition of “Facility”.

 

Tranche B-1 Term Loan Allocation”: (a) the amount of Existing Term Loans of each Exchanging Lender that is converted to Tranche B-1 Term Loans and (b) the amount of Additional Term Loans in the form of Tranche B-1 Term Loans of each Additional Term Lender, in each case, as set forth on Schedule 1.1(d) to this Agreement.

 

Tranche B-1 Term Loans”: (a) a Term Loan, the maturity of which has been extended to the maturity date specified in Section 2.3 and (b) a Tranche B-1 Term Loan borrowed by the Borrower on the Restatement Effective Date. The aggregate amount of Tranche B-1 Term Loans as of the Restatement Effective Date iswas $650,000,000.

 

Tranche B-2 Term Facility”: as defined in the definition of “Facility”.

 

Tranche B-2 Term Loan Allocation”: (a) the amount of Existing Term Loans of each Exchanging Lender that is converted to Tranche B-2 Term Loans and (b) the amount of Additional Term Loans in the form of Tranche B-2 Term Loans of each Additional Term Lender, in each case, as set forth on Schedule 1.1(e) to this Agreement.

 

Tranche B-2 Term Loans”: (a) a Term Loan, the maturity of which has been extended to the maturity date specified in Section 2.3 and (b) a Tranche B-2 Term Loan borrowed

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by the Borrower on the Restatement Effective Date. The aggregate amount of Tranche B-2 Term Loans as of the Restatement Effective Date iswas $1,120,000,000.

 

Tranche B-3 Term Facility”: as defined in the definition of “Facility”.

 

Tranche B-3 Term Loan Allocation”: the amount of Tranche B-3 Term Loans of each Incremental Tranche B-3 Term Lender, in each case, as set forth in Schedule A of the First Amendment Agreement.

 

Tranche B-3 Term Loans”: a Tranche B-3 Term Loan borrowed by the Borrower on the Incremental Effective Date. The aggregate amount of Tranche B-3 Term Loans as of the Incremental Effective Date iswas $1,350,000,000.

 

Tranche B-4 Term Facility”: as defined in the definition of “Facility”.

 

“Tranche B-4 Term Loans”: a Tranche B-4 Term Loan borrowed by the Borrower on the Refinancing Effective Date. The aggregate amount of Tranche B-4 Term Loans as of the Refinancing Effective Date was $717,000,000.

 

“Tranche B-5 Term Facility”: as defined in the definition of “Facility”.

 

Tranche B-4 Term Loan Allocation”: the amount of Tranche B-4 Term Loans of each Refinancing Tranche B-46 Term Lender, in each case, as set forth in Schedule A of the Second”: as defined in the Third Amendment Agreement.

 

Tranche B-45 Term Loans”: a Tranche B-45 Term Loan borrowed by the Borrower on the Refinancing Effective Date. The aggregate amount of Tranche B-45 Term Loans as of the Refinancing Effective Date is $717,000,000was $1,050,000,000.

 

Tranche B-56 Term Facility”: as defined in the definition of “Facility”.

 

Tranche B-56 Term Loan Allocation”: the amount of Tranche B-56 Term Loans of each Refinancing Tranche B-56 Term Lender, in each case, as set forth in Schedule BA in Exhibit C of the SecondThird Amendment Agreement.

 

Tranche B-56 Term Loans”: a Tranche B-56 Term Loan borrowed by the Borrower on the RefinancingThird Amendment Effective Date. The aggregate amount of Tranche B-56 Term Loans as of the RefinancingThird Amendment Effective Date is $1,050,000,000950,000,000.

 

Transaction Costs”: the fees, costs and expenses (including all expenses related to management bonuses, severance payments or other employee related costs and expenses) payable by the Borrower or any of its Restricted Subsidiaries in connection with the transactions contemplated by the Amendment and Restatement Agreement and the Restatement Effective Date Transactions.

 

Transferee”: any Assignee or Participant.

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“Transformative Acquisition”: any acquisition or Investment by the Borrower or any Restricted Subsidiary that either (a) is not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as reasonably determined by the Borrower acting in good faith.

 

Type”: as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.

 

United States”: the United States of America.

 

“Unrestricted Cash”: cash or Cash Equivalents of the Borrower or any of its Restricted Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of the Borrower in accordance with GAAP; provided that cash and Cash Equivalents that are restricted or secured (i) in favor of the Indebtedness under this Agreement shall be deemed to be Unrestricted Cash and (ii) in favor of other Indebtedness secured by a pari passu or junior Lien on the Collateral as permitted under this Agreement, shall be deemed to be Unrestricted Cash (only if such cash and Cash Equivalents are also restricted or secured in favor of the Indebtedness under this Agreement on a pari passu or senior basis to the Lien of such other Indebtedness).

 

Unrestricted Cash”: as of any date of determination, the aggregate amount of cash, Cash Equivalents or deposit account balances equal to the sum of (i) all such cash, Cash Equivalents and deposit account balances held by the Borrower and its Restricted Subsidiaries that are Domestic Subsidiaries in any deposit account or securities account that is under the control of the Administrative Agent pursuant to a Control Agreement, (ii) the amount of such cash, Cash Equivalents and deposit account balances held by the Borrower and its Restricted Subsidiaries that are Domestic Subsidiaries in any deposit account or securities account with an average daily balance equal to or less than $1,000,000 that are not under the control of the Administrative Agent, in an aggregate amount not to exceed $25,000,000 and (iii) all such cash, Cash Equivalents and deposit account balances held by Restricted Subsidiaries that are organized under the laws of a jurisdiction in Canada (whether or not under the control of the Administrative Agent pursuant to a Control Agreement) and, in each case, that meet the following requirements:

 

(a) such cash, Cash Equivalents or deposit account balances are free and clear of all Liens other than Liens of the Administrative Agent on behalf of the Lenders hereunder, Liens securing any Permitted Junior Refinancing Indebtedness, any Permitted Pari Passu Refinancing Indebtedness and non-consensual bankers Liens permitted by Section 8.3 in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry,

 

(b) such cash, Cash Equivalents or deposit account balances are included in the cash listed on the consolidated balance sheet of the Borrower and the

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Restricted Subsidiaries that are Domestic Subsidiaries or Restricted Subsidiaries that are organized under the laws of a jurisdiction in Canada, and

 

(c) such cash, Cash Equivalents or deposit account balances should be classified as “unrestricted cash” for purposes of GAAP as at such date;

 

provided, that, solely for purposes of determining Unrestricted Cash on any date that is on or prior the date that is 90 days after the Restatement Effective Date, the requirement for any deposit account or securities account to be under the control of the Administrative Agent pursuant to a Control Agreement set forth in clause (i) of this definition shall not apply.

 

          “Unrestricted Subsidiary”:  (i) any Subsidiary of the Borrower that at the time of determination is an Unrestricted Subsidiary, as designated by the Board of Directors of the Borrower in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary.  The Board of Directors of the Borrower may designate any Subsidiary of the Borrower (including any newly acquired or newly formed Subsidiary of the Borrower) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Borrower or any other Restricted Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary to be so designated; provided, that (i)(A) such designation was made at or prior to the RestatementThird Amendment Effective Date (and any such Subsidiary so designated is set forth on Schedule 1.1(b) heretoin Exhibit D of the Third Amendment Agreement), or (B) the Subsidiary to be so designated has total consolidated assets of $1,000 or less or (C) if such Subsidiary has consolidated assets greater than $1,000, then the fair market value of such designation would be permitted under Section 8.7 and (ii) any Unrestricted Subsidiary that has been designated as a Restricted Subsidiary may not subsequently be re-designated as an Unrestricted Subsidiary without the prior consent of the Administrative Agent and; provided, further, that immediately prior and immediately after giving effect to such designation (x) the Borrower is would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) on a pro forma basis after giving effect to such designation and all related transactions at any time completed as if completed on the first day of the twelve12-month period ending on the most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1, as originally in effect or amended in accordance with the date hereof, was required on the Test Date) and (y) no Default or Event of Default hasshall have occurred and isbe continuing.  Any such designation by the Board of Directors shall be evidenced to the Administrative Agent by promptly delivering to the Administrative Agent a copy of the resolution of the Borrower’s Board of Directors giving effect to such designation and a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing provisions.

  

Weighted Average Life to Maturity”: when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

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“Wholly Owned Foreign Subsidiary”: any Wholly Owned Subsidiary that is a Foreign Subsidiary.

 

Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law or de minimis shares held by nominees or others as required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries. Unless otherwise qualified, all references to a “Wholly Owned Subsidiary” or to “Wholly Owned Subsidiaries” in this Agreement shall refer to a Wholly Owned Subsidiary or Wholly Owned Subsidiaries of the Borrower.

 

“Withholding Agent”: the Borrower and the Administrative Agent.

 

Write-Down and Conversion Powers”: 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.

 

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

 

(b)            As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) applied in a consistent manner, (ii) 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 applied in a consistent manner, (iii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iiiiv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties of every type and nature, and (ivv) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions hereunder).

 

(c)             For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., “Tranche B-1 Term Loans”) or by Type (e.g., a “Eurodollar Rate Term LoanLoans”).

 

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

 

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

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(f)             The expressions “payment in full,” “paid in full” and any other similar terms or phrases when used herein with respect to any Obligation shall mean the payment in full of such Obligation in cash in immediately available funds.

 

(g) When used herein in connection with a Letter of Credit, the word “draft” shall include any written demand for payment under a Letter of Credit.

 

1.3.          Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (x) compliance with any financial ratio or test (including Section 8.1 hereof, any Consolidated Coverage Ratio test, any Consolidated Net Leverage Ratio test, any Consolidated Senior Secured Net Leverage Ratio test, the amount of Consolidated Total Assets or any cap expressed as a percentage of Consolidated Total Assets) or (y) the absence of a Default or Event of Default as a condition to (A) the making of any Limited Condition Acquisition or (B) the consummation of any transaction in connection with any Limited Condition Acquisition (including the assumption or incurrence of Indebtedness or Liens in connection therewith), the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, at the time of (or on the basis of the financial statements for the most recently ended Test Date at the time of) either (I) the execution of the definitive agreement with respect to such Limited Condition Acquisition or (II) the consummation of such Limited Condition Acquisition, in each case, after giving effect to the relevant Limited Condition Acquisition or other transaction and any related Indebtedness or Liens on a pro forma basis.

 

(b)            Notwithstanding the foregoing, if the Borrower has made an election to test at the time of the execution of the definitive agreement with respect to a Limited Condition Acquisition or the consummation of any transaction in connection with any Limited Condition Acquisition, then, in connection with any subsequent calculation of any ratio or test on or following the relevant determination date, and prior to the earlier of (x) the date on which such Limited Condition Acquisition is consummated or (y) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or test shall be calculated on (A) a pro forma basis assuming such Limited Condition Acquisition or any transactions in connection therewith (including any incurrence of Indebtedness, Liens and the use of proceeds thereof) has been consummated, and also on (B) a standalone basis without giving effect to such Limited Condition Acquisition and any such transactions in connection therewith.

 

(c)            Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under Section 4.17 or any covenant that does not require compliance with a financial ratio (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under Section 4.17 or the same covenant as such Fixed Amount that requires compliance with a financial ratio (including Section 8.1 hereof, any Consolidated Net Leverage Ratio test or any Consolidated Senior Secured Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts being substantially concurrently incurred shall be disregarded in the calculation of the financial ratio or

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test applicable to such substantially concurrent utilization of the Incurrence-Based Amounts under Section 4.17 or the same covenant as such Fixed Amount.

 

(d)           Notwithstanding anything to the contrary herein, Consolidated EBITDA, Consolidated Net Income and any financial ratios or tests, including the Consolidated Coverage Ratio, Consolidated Net Leverage Ratio and the Consolidated Senior Secured Net Leverage Ratio, shall be calculated in the manner prescribed by this Section 1.3(d) or (e), as applicable; provided that notwithstanding anything to the contrary in clauses (i), (ii), (iii) or (iv) of this Section 1.3(d) or Section 1.3(e), as applicable, when calculating the Consolidated Senior Secured Net Leverage Ratio for purposes of determining actual compliance (and not compliance on a pro forma basis or determining compliance giving pro forma effect to a transaction) with Section 8.1, the events described in this Section 1.3(d) or Section 1.3(e) that occurred subsequent to the end of the period of four consecutive fiscal quarters ended on the most recent Test Date shall not be given pro forma effect:

 

(i)       if since the beginning of such period the Borrower or any Restricted Subsidiary has Incurred any Indebtedness that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test is an Incurrence of Indebtedness, then Consolidated EBITDA, Consolidated Interest Expense or such ratio or test for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation);

 

(ii)        if since the beginning of such period the Borrower or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness that is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid), then Consolidated EBITDA, Consolidated Interest Expense or such financial ratio or test for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such Discharge had occurred on the first day of such period;

 

(iii)           if since the beginning of such period the Borrower or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business (any such disposition,

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a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness of the Borrower or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to the Borrower and its continuing Restricted Subsidiaries in connection with such Sale for such period (including but not limited to through the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent the Borrower and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale, and any financial ratio or test shall be calculated after giving pro forma effect to such Sale as if such Sale had occurred on the first day of such period;

 

(iv)             if since the beginning of such period the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business in a Permitted Acquisition, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder (any such Investment or acquisition, a “Purchase”), Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period;

 

(v)              if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (ii), (iii) or (iv) of Section 1.3(d) if made by the Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period; and

 

(vi)            whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings, synergies or annualized impact of buyer fee increases relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief

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Financial Officer or a Responsible Officer of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense 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 Hedge Agreement applicable to such Indebtedness). If any Indebtedness bears, at the option of the Borrower or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as the Borrower or such Restricted Subsidiary may designate. If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate determined in good faith 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.

 

(e)            For the purposes of calculating Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for any period of four consecutive fiscal quarters (each, a “Reference Period”), (i) if at any time during such Reference Period the Borrower or any Restricted Subsidiary shall have made any Material Disposition or designated any Restricted Subsidiary as an Unrestricted Subsidiary, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition or designation for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period the Borrower or any Restricted Subsidiary shall have made a Material Acquisition or designated any Unrestricted Subsidiary as a Restricted Subsidiary, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto, as if such Material Acquisition or designation occurred on the first day of such Reference Period. As used in this definition, “Material Acquisition” means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of consideration by the Borrower and its Restricted Subsidiaries in excess of $5,000,000; and “Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Restricted Subsidiaries in excess of $5,000,000.

 

1.4.         Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) any reference to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company or limited partnership, or an allocation of assets to a series of a limited liability company or limited partnership (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as

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applicable, to, of or with a separate Person and (b) any division of a limited liability company or limited partnership shall constitute a separate Person hereunder (and each division of any limited liability company or limited partnership that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

 

1.5.         Interest Rates; LIBOR Notification. The interest rate on Eurodollar Loans is determined by reference to the LIBOR Screen Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. In the event that the London interbank offered rate is no longer available or in certain other circumstances as set forth in Section 4.7(b), Section 4.7(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Borrower, pursuant Section 4.7(b), in advance of any change to the reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBOR Screen Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 4.7(b), will be similar to, or produce the same value or economic equivalence of, the LIBOR Screen Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

 

1.6.         Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Refinancing Term Loans, Refinancing Revolving Loans, Extended Loans or loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in immediately available funds”, “in cash” or any other similar requirement.

 

SECTION 2. AMOUNT AND TERMS OF TERM LOANS

 

2.1.          Term Loans.

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2.1. Term Loans(a) . (a) On the Restatement Effective Date, in accordance with the terms and conditions set forth herein and in the Amendment and Restatement Agreement, (i) each Existing Term Lender that is an Exchanging Term Lender hereby exchanges its Existing Term Loans for Tranche B-1 Term Loans and/or Tranche B-2 Term Loans on a dollar-for-dollar basis in an amount equal to such Term Lender’s Tranche B-1 Term Loan Allocation and/or Tranche B-2 Term Loan Allocation and any of its Existing Term Loans in excess of its applicable Tranche B-1 Term Loan Allocation and/or Tranche B-2 Term Loan Allocation shall be repaid in full and (ii) each Existing Term Lender that has not agreed to be an Exchanging Term Lender shall have its Existing Term Loans repaid in full;

 

(b) On the Restatement Effective Date, in accordance with the terms and conditions set forth herein and in the Amendment and Restatement Agreement, each Additional Term Lender will extend Tranche B-1 Term Loans and/or Tranche B-2 Term Loans to the Borrower in an amount equal to such Term Lender’s Tranche B-1 Term Loan Allocation and/or Tranche B-2 Term Loan Allocation.

 

(c) On the Incremental Effective Date, in accordance with the terms and conditions set forth herein and in the First Amendment Agreement, each Incremental Tranche B-3 Term Lender will extend Tranche B-3 Term Loans to the Borrower in an amount equal to such Term Lender’s Tranche B-3 Term Loan Allocation.

 

(a)             (d) On the RefinancingThird Amendment Effective Date, in accordance with the terms and conditions set forth herein and in the SecondThird Amendment Agreement, (x) each Refinancing Tranche B-46 Term Lender will extend Tranche B-46 Term Loans to the Borrower in an amount equal to such Term Lender’s Tranche B-4 Term Loan Allocation and (y) each Refinancing Tranche B-5 Term Lender will extend Tranche B-5 Term Loans to the Borrower in an amount equal to such Term Lender’s Tranche B-56 Term Loan Allocation.

 

(b)             (e) The Term Loans shall be either Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 4.3.

 

2.2.          Procedure for the Term Loan Borrowing.

 

(a) The Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 5:00 p.m., New York City time), one Business Day prior to the anticipated Restatement Effective Date, requesting that the Term Lenders (other than the Incremental Tranche B-3 Term Lenders, the Refinancing Tranche B-4 Term Lenders and the Refinancing Tranche B-5 Term Lenders) make Term Loans (other than Tranche B-3 Term Loans, Tranche B-4 Term Loans and Tranche B-5 Term Loans) on the Restatement Effective Date and specifying the amount to be borrowed. Upon receipt of such notice, the Administrative Agent shall promptly notify each Term Lender (other than the Incremental Tranche B-3 Term Lenders, the Refinancing Tranche B-4 Term Lenders and the Refinancing Tranche B-5 Term Lenders) thereof. Not later than 1:00 p.m., New York City time, on the Restatement Effective Date, each Term

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Lender (other than the Incremental Tranche B-3 Term Lenders, the Refinancing Tranche B-4 Term Lenders and the Refinancing Tranche B-5 Term Lenders) shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan or Term Loans (other than Tranche B-3 Term Loans, Tranche B-4 Term Loans and the Tranche B-5 Term Loans) to be made by such Lender.

 

(b) The Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 5:00 p.m., New York City time), one Business Day prior to the anticipated Incremental Effective Date, requesting that the Incremental Tranche B-3 Term Lenders make Tranche B-3 Term Loans on the Incremental Effective Date and specifying the amount to be borrowed. Upon receipt of such notice, the Administrative Agent shall promptly notify each Incremental Tranche B-3 Term Lender thereof. Not later than 1:00 p.m., New York City time, on the Incremental Effective Date, each Incremental Tranche B-3 Term Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Tranche B-3 Term Loans to be made by such Lender.

 

(a)             (c) The Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 5:00 p.m., New York City time), one Business Day prior to the anticipated RefinancingThird Amendment Effective Date, requesting that (x) the Refinancing Tranche B-46 Term Lenders make the Tranche B-46 Term Loans and (y) the Refinancing Tranche B-5 Term Lenders make the Tranche B-5 Term Loans, in each case, on the Refinancingon the Third Amendment Effective Date and specifying the amount to be borrowed. Upon receipt of such notice, the Administrative Agent shall promptly notify each Refinancing Tranche B-46 Term Lender and each Refinancing Tranche B-5 Term Lender thereof, as applicable. Not later than 1:00 p.m., New York City time, on the RefinancingThird Amendment Effective Date, each Refinancing Tranche B-46 Term Lender and each Refinancing Tranche B-5 Term Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Tranche B-4 Term Loans and Tranche B-56 Term Loans, as applicable, to be made by such Lender.

 

(b)             (d) The Administrative Agent shall credit the account of the Borrower on the books of such office of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Lenders in immediately available funds.

 

2.3.          Repayment of Term Loans. Tranche B-6 Term Loans of each Term Lender shall mature and be payable (a) in the case of Tranche B-1 Term Loans, in full on the date that is threeseven years after the RestatementThird Amendment Effective Date, and shall also be repayable prior to that date in consecutive quarterly installments, each of which shall be in an amount equal to such Term Lender’s Term Percentage of 0.25% of the original aggregate principal amount of the Tranche B-16 Term Loans outstanding on the RestatementThird Amendment Effective Date after giving effect to Section 2.1 hereof, due commencing on June 30, 2014December 31, 2019 and continuing on the last day of each consecutive September, December, March and June thereafter, (b) in the case of Tranche B-2 Term Loans, in full on the date that is seven years after the Restatement Effective Date, and shall also be repayable prior to that date in consecutive quarterly installments, each of which shall be in an amount

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equal to such Lender’s Term Percentage of 0.25% of the original aggregate principal amount of the Tranche B-2 Term Loans outstanding on the Restatement Effective Date after giving effect to Section 2.1 hereof, due commencing on June 30, 2014 and continuing on the last day of each consecutive September, December, March and June thereafter, (c) in the case of Tranche B-3 Term Loans, in full on the date that is seven years after the Incremental Effective Date, and shall also be repayable prior to that date in consecutive quarterly installments, each of which shall be in an amount equal to such Lender’s Term Percentage of 0.25% of the original aggregate principal amount of the Tranche B-3 Term Loans outstanding on the Incremental Effective Date after giving effect to Section 2.1 hereof, due commencing on June 30, 2016 and continuing on the last day of each consecutive September, December, March and June thereafter, (d) in the case of Tranche B-4 Term Loans, in full on the date that is seven years after the Restatement Effective Date, and shall also be repayable prior to that date in consecutive quarterly installments, each of which shall be in an amount equal to such Lender’s Term Percentage of 0.25% of the original aggregate principal amount of the Tranche B-4 Term Loans outstanding on the Refinancing Effective Date after giving effect to Section 2.1 hereof, due commencing on September 30, 2017 and continuing on the last day of each consecutive December, March, June and September thereafter and (e) in the case of Tranche B-5 Term Loans, in full on the date that is seven years after the Incremental Effective Date, and shall also be repayable prior to that date in consecutive quarterly installments, each of which shall be in an amount equal to such Lender’s Term Percentage of 0.25% of the original aggregate principal amount of the Tranche B-5 Term Loans outstanding on the Refinancing Effective Date after giving effect to Section 2.1 hereof, due commencing on September 30, 2017 and continuing on the last day of each consecutive December, March, June and SeptemberMarch, June, September and December thereafter.

 

SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS

 

3.1.          Revolving Commitments.

 

3.1. Revolving Commitments(a) (a) On the Restatement Effective Date, in accordance with the terms and conditions set forth herein and in the Amendment and Restatement Agreement:

 

(i) each Existing Revolving Lender that is an Exchanging Revolving Lender hereby exchanges its Existing Revolving Commitments on a dollar-for-dollar basis into Revolving Commitments hereunder in an amount equal to its Revolving Commitment Allocation and any of its Existing Revolving Commitments in excess of its Revolving Commitment Allocation are hereby terminated;

 

(ii) each Existing Revolving Lender that has not agreed to be an Exchanging Revolving Lender shall have its Existing Revolving Commitments terminated and all such Existing Revolving Commitments are hereby terminated; and

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(iii) each Additional Revolving Lender will extend Revolving Commitments hereunder in an amount equal to its Revolving Commitment Allocation;

 

(a)            (b) On the IncrementalThird Amendment Effective Date, in accordance with the terms and conditions set forth herein and in the FirstThird Amendment Agreement, each IncrementalThird Amendment Effective Date Revolving Lender will extend Revolving Commitments hereunder in an amount equal to its Revolving Commitment Allocations;.

 

(c) On the Refinancing Effective Date, in accordance with the terms and conditions set forth herein and in the Second Amendment Agreement, each Refinancing Effective Date Revolving Lender will extend Revolving Commitments hereunder in an amount equal to its Revolving Commitment Allocations;

 

(b)            (d) subjectSubject to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Extensions of Credit then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. Revolving Loans that are repaid may be reborrowed during the Revolving Commitment Period, subject to the terms and conditions hereof. The Revolving Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 3.2 and 4.3; and.

 

(c)            (e) theThe Borrower shall repay all outstanding Revolving Loans on the Revolving Termination Date.

 

3.2.          Procedure for Revolving Loan Borrowing. The Borrower may borrow under the Revolving Commitments during the Revolving Commitment Period on any Business Day; provided, that the Borrower shall give the Administrative Agent irrevocable notice, which must be received by the Administrative Agent prior to 1:00 p.m., New York City time, (a) three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date, in the case of Base Rate Loans and which shall specify (i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. Each borrowing under the Revolving Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple thereof and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof. Each Revolving Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 12:00 Noonnoon, New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such amounts will then be made available to the Borrower by the Administrative Agent crediting an account of the Borrower maintained by the Administrative Agent, in like amounts and funds as received by the Administrative Agent.

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3.3.          Swingline Commitment. (a)  Subject to the terms and conditions hereof, the Swingline Lender may in its sole discretion make a portion of the credit otherwise available to the Borrower under the Revolving Commitments from time to time during the Revolving Commitment Period by making swing line loans (“Swingline Loans”) to the Borrower notwithstanding that after making a requested Swingline Loan, the sum of (i) the Swingline Lender’s aggregate principal amount of all Revolving Loans, (ii) the Revolving Percentage of the L/C Obligations and (iii) all outstanding Swingline Loans may exceed the Swingline Lender’s Revolving Commitment; provided, that (i) the aggregate principal amount of Swingline Loans outstanding at any time shall not exceed the Swingline Commitment Amount, (ii) the Borrower shall not request any Swingline Loan if, after giving effect to the making of such Swingline Loan, the aggregate amount of the Available Revolving Commitments would be less than zero, and (iii) the Swingline Lender shall not be required to make any Swingline Loans under this Section 3.3 at any time when an Event of Default has occurred and is continuing. Subject to the foregoing, Swingline Loans may be repaid and reborrowed from time to time.

 

(b)            Swingline Loans shall be Base Rate Loans only.

 

(c)             The Borrower shall repay all outstanding Swingline Loans (i) on each Borrowing Date for Revolving Loans, (ii) on the Revolving Termination Date, (iii) on a weekly basis as determined by the Swingline Lender and (iv) on demand by the Swingline Lender at any time when an Event of Default has occurred and is continuing.

 

3.4.          Procedure for Swingline Borrowing; Refunding of Swingline Loans; Successor Swingline Lenders. (a)  Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swingline Lender not later than 1:00 P.Mp.m., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Commitment Period) and such notice shall constitute certification by the Borrower to the Swingline Lender that the unused portion of the Revolving Facility is greater than or equal to the Swingline Loans and the Swingline Lender shall be entitled to rely conclusively on such certification. Each borrowing of Swingline Loans shall be in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00 P.Mp.m., New York City time, on the Borrowing Date specified in a notice in respect of Swingline Loans, the Swingline Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline Lender. The Administrative Agent shall make the proceeds of such Swingline Loan available to the Borrower on such Borrowing Date by depositing such proceeds in the account of the Borrower with the Administrative Agent on such Borrowing Date in immediately available funds.

 

(b)            The Swingline Lender may at any time, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to do so), request a borrowing of Revolving Loans in an amount equal to the aggregate outstanding Swingline Loans and apply the proceeds of such borrowing to the repayment of the Swingline Loans. Each Revolving Lender agrees to fund its Revolving Percentage of any such borrowing so requested in immediately available funds, not later than 10:00 a.m., New York City time, on the first Business Day after the

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date of such borrowing is requested. The proceeds of such Revolving Loans shall immediately be made available by the Administrative Agent to the Swingline Lender for application to the repayment of Swingline Loans. The Borrower agrees to pay, and irrevocably authorizes the Swingline Lender and Administrative Agent to charge the Borrower’s accounts with the Swingline Lender or Administrative Agent as necessary to pay, all outstanding Swingline Loans to the extent amounts received from the Revolving Lenders upon any such request are not sufficient to repay the outstanding Swingline Loans.

 

(c)             If the Swingline Lender at any time determines that it is precluded from making a request for a borrowing of Revolving Loans pursuant to Section 3.4(b), whether by reason of the occurrence of a Default described in Section 9(f) or otherwise for any reason, each Revolving Lender hereby purchases from the Swingline Lender an undivided participating interest in the then outstanding Swingline Loans (a “Swingline Participation Amount”) and shall promptly upon demand of the Swingline Lender complete such purchase at par by paying to the Swingline Lender an amount equal to such Revolving Lender’s Revolving Percentage of the aggregate outstanding Swingline Loans.

 

(d)            Whenever, at any time after the Swingline Lender has received from any Revolving Lender such Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided, that if any such payment is required to be returned, such Revolving Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.

 

(e)             Each Revolving Lender’s obligation to make the Loans referred to in Section 3.4(b) and to purchase participating interests pursuant to Section 3.4(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of any Default or the failure to satisfy any of the conditions specified in Section 6; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

(f)             The Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 4.5(b). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references

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herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.

 

(g)            Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline Lender may resign as a Swingline Lender at any time upon thirty days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 3.4(f) above.

 

3.5.          Commitment Fees, etc. (a)  The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee for the period from and including the RestatementThird Amendment Effective Date to the last day of the Revolving Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last day of each March, June, September and December and on the Revolving Termination Date, commencing on the first of such dates to occur after the Restatement Effective DateDecember 31, 2019.

 

(b)            The Borrower agrees to pay to the AgentsAdministrative Agent the fees in the amounts and on the dates agreed to in writing by the Borrower and the Administrative Agent.

 

3.6.          Termination or Reduction of Revolving Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments, which notice may be conditioned upon the occurrence of any other transaction and, if such condition is not satisfied on or prior to the date specified in such notice, may be revoked by the Borrower; provided, that no such termination or reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Loans and Swingline Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments. Any such reduction shall be in an amount equal to $500,000, or a whole multiple thereof or the Total Revolving Commitment, and shall reduce permanently the Revolving Commitments then in effect. In furtherance of the foregoing, on the RefinancingThird Amendment Effective Date, immediately upon the borrowing of the Tranche B-46 Term Loans and Tranche B-5 Term Loans and the repayment in full of all Revolving Loans then outstanding and substantially contemporaneously with obtaining Incremental Revolving Commitments in an aggregate principal amount of $350,000,000325,000,000 pursuant to the terms of the SecondThird Amendment Agreement, the Borrower hereby terminates all Revolving Commitments outstanding immediately prior to the establishment of such IncrementalThird Amendment Effective Date shall be deemed refinanced and replaced in full. Unless previously terminated in accordance with the terms hereof, the Revolving Commitments shall automatically terminate on the Revolving Termination Date.

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3.7.          Letter of Credit SubcommitmentCommitment. (a)  Subject to the terms and conditions hereof, each Issuing Lender (other than any Issuing Lender referred to in clause (b) of the definition of “Issuing Lender”), in reliance on the agreements of the other Revolving Lenders set forth in Section 3.10(a), agrees to issue, on a sight basis, letters of credit (“Letters of Credit”) for the account of the Borrower (or for the account of any Subsidiary of the Borrower if the Borrower requests a Letter of Credit for such Subsidiary’s account; provided, that notwithstanding that a Letter of Credit may be issued or outstanding hereunder in support of any obligations of, or for the account of, a Subsidiary of the Borrower, the Borrower shall be jointly and severally obligated to reimburse each Issuing Lender hereunder for any and all drawings under such Letter of Credit) on any Business Day at any time and from time to time until the date that is ten days prior to the Revolving Termination Date, in such form as may be approved from time to time by such Issuing Lender; provided, that the applicable Issuing Lender shall have no obligation to cause any Letter of Credit to be issued if, after giving effect to such issuance, (i) the L/C Obligations would exceed the Total L/C Subcommitment AmountCommitments, (ii) the aggregate amount of the Available Revolving Commitments would be less than zero, (iii) the aggregate face valuestated amount of all outstanding Letters of Credit issued by such Issuing Lender would exceed the then outstanding aggregate principal amount of the outstanding Revolving Commitments of such Issuing Lender or (iv) the aggregate face valuestated amount of all outstanding Letters of Credit issued by such Issuing Lender would exceed such Issuing Lender’s L/C Commitment (provided, that JPMorgan Chase Bank, N.A., as Issuing Lender, may at its sole discretion issue a Letter of Credit although after giving effect to such issuance the aggregate face valuestated amount of all outstanding Letters of Credit issued by JPMorgan Chase Bank, N.A. as Issuing Lender would exceed its L/C Commitment, so long as after giving effect to such issuance the L/C Obligations would not exceed the Total L/C Subcommitment AmountCommitments); provided, further, that Credit Suisse AG, Barclays Bank PLC and Goldman Sachs Bank USA shall be under no obligation to issue commercial or trade Letters of Credit. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any Application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Each Letter of Credit shall be denominated in Dollars and expire no later than the earlier of (i) the first anniversary of its date of issuance and (ii) the date that is tenfive days prior to the Revolving Termination Date; provided, that any Letter of Credit with a one-year term may provide, with the consent of the applicable Issuing Lender, for the automatic extension thereof for additional periods of up to one year (which shall in no event extend beyond the date referred to in clause (ii) above). If, as of the Revolving Termination Date, any Letter of Credit for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then undrawn amount of all outstanding Letters of Credit; provided, that all such Cash Collateral or Backstop L/Cs (each as defined below) shall be denominated in Dollars. “Cash Collateralize” shall mean to (i) pledge and deposit with or deliver to the Administrative Agent, for the benefit of the applicable Issuing Lender and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances of deposit accounts under the sole dominion and control of the Administrative Agent on terms reasonably satisfactory to the Administrative Agent in an amount equal to 103% of the total amount then available under the applicable Letters of Credit pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and such Issuing Lender (which documents are hereby consented to by the Lenders) (“Cash Collateral”) or (ii) deliver to the applicable Issuing Lender

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one or more backstop letters of credit in form and substance reasonably acceptable to, and issued by financial institutions reasonably acceptable to the applicable Issuing Lender that has issued such Letter of Credit and the Administrative Agent (each such letter of credit, a “Backstop L/C”). Derivatives of such above defined terms shall have corresponding meanings.

 

(b)            No Issuing Lender shall at any time be obligated to cause any Letter of Credit to be issued hereunder if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law or such Issuing Lender’s internal policies relating to the issuance of Letters of Credit.

 

(c)             The Borrower may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and such Lender being so designated, designate one or more additional Lenders to act as an issuing lender under the terms of this Agreement. Any Lender designated as an issuing lender pursuant to this Section 3.7(c) shall be deemed to be an “Issuing Lender” (in addition to being a Lender) in respect of Letters of Credit issued or to be issued by such Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Lender or Issuing Lenders and such Lender.

 

(d)            The Borrower hereby agrees that each Existing Letter of Credit shall be deemed to be a Letter of Credit under this Agreement after the RefinancingThird Amendment Effective Date; provided, that, (i) each such Existing Letter of Credit shall expire in accordance with its own terms (without giving effectsubject to any renewal or extension provisions thereunder) and (ii) the Borrower shall not extend the expiry date of any of the Existing Letters of Credit; provided, further, that, each such Existing Letter of Credit shall expire no later than the first anniversary of the Refinancing Effective Date.in accordance with its terms).

 

(e)            Any Issuing Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Lender and the successor Issuing Lender. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Lender pursuant to Section 3.9. From and after the effective date of any such replacement, (x) the successor Issuing Lender shall have all the rights and obligations of the replaced Issuing Lender under this Agreement with respect to Letters of Credit to be issued thereafter and (y) references herein to the term “Issuing Lender” shall be deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context shall require. After the replacement of an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Lender under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit or amend or extend any outstanding Letter of Credit issued by it.

 

(f)             Any Issuing Lender may resign as an Issuing Lender at any time upon thirty days’ prior written notice to the Administrative Agent and the Borrower, in which case, such Issuing Lender may be replaced in accordance with Section 3.7(e) above.

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3.8.          Procedure for Issuance of LetterLetters of Credit. (a)  The Borrower may from time to time request that any Issuing Lender (other than any Issuing Lender referred to in clause (b) of the definition of “Issuing Lender”) issue a Letter of Credit by delivering to such Issuing Lender at its address for notices specified herein an Application therefor, completed to the reasonable satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such Issuing Lender may reasonably request. Upon receipt of any Application, such Issuing Lender will notify the Administrative Agent of the amount, the beneficiary and the requested expiration of the requested Letter of Credit, and upon receipt of written confirmation from the Administrative Agent that after giving effect to the requested issuance, none of the statements specified in clauses (i) through (iv) of the first sentence of Section 3.7(a) would be true, such Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith to be processed in accordance with its customary policies and procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall any Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower. Such Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower (with a copy to the Administrative Agent) promptly following the issuance thereof. Such Issuing Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).

 

(b)            The making of each request for a Letter of Credit by the Borrower shall be deemed to be a representation and warranty by the Borrower that such Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.7(a) or any Requirement of Law applicable to the Loan Parties. Unless each Issuing Lender has received notice from the Administrative Agent before it issues a Letter of Credit that one or more of the applicable conditions specified in Section 6.1 are not satisfied, or that the issuance of such Letter of Credit would violate Section 3.7, then such Issuing Lender may issue the requested Letter of Credit for the account of the Borrower in accordance with its usual and customary practicespolicies and procedures.

 

3.9.          Fees and Other Charges. (a) The Borrower will pay a fee on the undrawn and unexpired amount of each Letter of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Eurodollar Loans under the Revolving Facility less the fronting fee set forth in the succeeding sentence, shared ratably among the Revolving Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the issuance date. In addition, the Borrower shall pay to each Issuing Lender for its own account a fronting fee on the undrawn and unexpired amount of each Letter of Credit issued by such Issuing Lender computed at the rate of 0.250.125% per annum and payable quarterly in arrears on each L/C Fee Payment Date.

 

(b)            In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.

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3.10.        L/CLetter of Credit Participations. (a)  Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce such Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued hereunder and the amount of each draftdrawing paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with each Issuing Lender that, if a draftdrawing is paid under any Letter of Credit for which such Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to the Administrative Agent for the account of such Issuing Lender upon demand of such Issuing Lender an amount equal to such L/C Participant’s Revolving Percentage of the amount of such draftdrawing, or any part thereof, that is not so reimbursed and the Administrative Agent shall promptly forward such amounts to such Issuing Lender.

 

(b)            If any amount required to be paid by any L/C Participant to the Administrative Agent for the account of any Issuing Lender pursuant to Section 3.10(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit is paid to the Administrative Agent for the account of such Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to the Administrative Agent for the account of such Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 3.10(a) is not made available to the Administrative Agent for the account of any Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Loans under the Revolving Facility. A certificate of any Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this Section 3.10 shall be conclusive in the absence of manifest error.

 

(c)             Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section 3.10(a), the Administrative Agent or any Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, the Administrative Agent or such Issuing Lender, as the case may be, will distribute to such L/C Participant its pro rata share thereof; provided, that if any such payment received by Administrative Agent or such Issuing Lender, as the case may be, shall be required to be returned by the Administrative Agent or such Issuing Lender, such L/C Participant shall return to the Administrative Agent for the account of such Issuing Lender the portion thereof previously distributed to such L/C Participant.

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3.11.       Reimbursement Obligation of the Borrower. The Borrower agrees to reimburse each Issuing Lender on the samewithin one Business Day on whichafter such Issuing Lender notifies the Borrower of the date and amount of a draftdrawing presented under any Letter of Credit paid by such Issuing Lender or on the next Business Day, if such notice is received any time after 11:00 a.m., New York time, on such Business Day for the amount of such draftdrawing so paid. Each such payment shall be made to such Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on which the relevant draftdrawing is paid until payment in full at the rate set forth in (i) until the Business Day next succeeding the date of the relevant notice, Section 4.5(b) and (ii) thereafter, Section 4.5(c).

 

3.12.       Obligations Absolute. The Borrower’s obligations under Section 3.11 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrower’s Reimbursement Obligations under Section 3.11 shall not be affected by, among other things, (i) the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or purportedly transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee or purported transferee, (ii) payment by each Issuing Lender under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iii) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.12, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealablenon-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Issuing Lender or any Related Person of such Issuing Lender. The Borrower agrees that any action taken by any Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the Uniform Commercial Code of the State of New York, shall be binding on the Borrower and shall not result in any liability of such Issuing Lender to the Borrower.

 

3.13.       Letter of Credit Payments. If any drafta compliant drawing shall be presented for payment under any Letter of Credit, the applicable Issuing Lender that issued such Letter of Credit shall promptly notify the Administrative Agent who in turn shall promptly notify the Borrower of the date and amount thereof. The responsibility of each Issuing Lender to the Borrower in connection with any draftdrawing presented for payment under any Letter of Credit issued by such Issuing Lender shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to causing the applicable Issuing Lender that has issued such Letter of Credit to determine that the documents (including each draftdrawing, if any) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit.

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SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND
LETTERS OF CREDIT

 

4.1.          Optional Prepayments. (a) The Borrower may at any time and from time to time voluntarily prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no later than 1:00 p.m., New York City time (or such later time as the Administrative Agent may agree in its sole discretion), three Business Days prior thereto in the case of Eurodollar Loans and no later than 1:00 p.m., New York City time (or such later time as the Administrative Agent may agree in its sole discretion), one Business Day prior thereto in the case of Base Rate Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 4.11. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein (provided, that a notice of prepayment may state that such notice is conditioned upon the effectiveness of other credit facilities or other financing or events, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied), together with (except in the case of Revolving Loans that are Base Rate Loans and Swingline Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving Loans pursuant to this Section 4.1 shall be in an aggregate principal amount of $500,000 or a whole multiple thereof. Partial prepayments of Swingline Loans pursuant to this Section 4.1 shall be in an aggregate principal amount of $100,000 or a whole multiple thereof.

 

(b)            Any optional prepayments of the Term Facilities shall be credited to the remaining scheduled installments of the Term Facilities thereof as specified by the Borrower or, if not specified, pro rata to the remaining installments of each of the Facilities on a pro rata basis.

 

(c)             Notwithstanding the foregoing, a prepayment premium shall apply to any prepayment of Tranche B-4 Term Loans or Tranche B-56 Term Loans occurring on or prior to the six month anniversary of the RefinancingThird Amendment Effective Date, in each case from the proceeds of a Repricing Transaction (as defined below) in an amount equal to 1.00% of the principal amount of any Tranche B-6 Term Loans subject to such prepayment Repricing Transaction, or, in the case of any Repricing Transaction effected through an amendment, the principal amount of loans under the relevant Term FacilitiesTranche B-6 Term Loans outstanding immediately prior to such amendment of any Term Lender that is replaced in connection with such amendment pursuant to the Borrower’s exercise of its mandatory assignment rights to replace a Lender under Section 4.13. Repricing Transaction” shall mean (i) prepayment or refinancing of all or a portion of the Term Loans concurrently with the Incurrence by the Borrower of any long-term bank debt financing or any other financing similar to the Term Loans having a lower all-in yield (including in addition to the applicable coupon, any interest rate “floors”, upfront or similar fees, and original issue discount payable to the holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) than the yield applicable to the Term Loans (including in addition to the applicable coupon, any interest rate “floors”, upfront or similar fees, and original issue discount payable to the

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holders of such Indebtedness (in their capacities as such) with respect to such Indebtedness) and (ii) any amendment which reduces the all-in-yield (calculated in the manner set forth in clause (i) above) applicable to the Term Loans.

 

4.2.          Mandatory Prepayments. (a)  If at any time after the RefinancingThird Amendment Effective Date any Group Member receives any Net Cash Proceeds from the Incurrence of any Indebtedness (other than Excluded Indebtedness) or the issuance of any Disqualified Capital Stock, the Borrower shall prepay the Tranche B-4 Term Loans and Tranche B-5 Term Loans on a pro rata basis on the date of such receipt in an amount equal to 100% of such Net Cash Proceeds.; provided, that if at the time of such prepayment such Group Member is required to prepay any Other Applicable Indebtedness (to the extent and if required by the terms of the definitive documentation governing such other Indebtedness), then the Borrower may apply 100% of such Net Cash Proceeds to prepay the Term Loans and prepay, redeem or repurchase such Other Applicable Indebtedness on a pro rata basis on the date of such receipt; provided, further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or less than par), (B) the portion of such prepayment amount allocated to such Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) the amount of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(a) shall be reduced accordingly and (D) to the extent the holders of such Other Applicable Indebtedness decline to have such Indebtedness prepaid, redeemed or repurchased, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.

 

(b)            If at any time after the RefinancingThird Amendment Effective Date any Group Member receives any Net Cash Proceeds from any Asset Sale or Recovery Event in an amount exceeding $20,000,000 in any fiscal year, then, unless athe Borrower shall (i) if no Reinvestment Notice shall behave been delivered in respect thereof, the Borrower shall prepay the Tranche B-4 Term Loans and Tranche B-5 Term Loans on a pro rata basis on or prior to the third Business Day following the date of such receipt in an amount equal to 100% of such excess Net Cash Proceeds. If or (ii) if a Reinvestment Notice has been delivered in respect of any Asset Sale or Recovery Event, then on each Reinvestment Prepayment Date relating thereto, the Borrower shallthereof, prepay the Term Loans in an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event., if any, on a pro rata basis on the Reinvestment Prepayment Date; provided, that if at the time of such prepayment the Borrower or such Group Member is required to prepay any Other Applicable Indebtedness (to the extent and if required by the terms of the definitive documentation governing such other Indebtedness), then the Borrower may apply 100% of such excess Net Cash Proceeds (or the Reinvestment Prepayment Amount, as applicable) to prepay the Term Loans and prepay, redeem or repurchase such Other Applicable Indebtedness on a pro rata basis on the date of such receipt; provided, further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or less than par), (B) the portion of such prepayment amount allocated to such Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) the amount of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(b) shall be reduced accordingly

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and (D) to the extent the holders of such Other Applicable Indebtedness decline to have such Indebtedness prepaid, redeemed or repurchased, 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.

 

(c) If at any time after the Refinancing Effective Date any Group Member enters into any sale-leaseback transaction permitted by Section 8.10, (i) the Borrower shall prepay the Tranche B-4 Term Loans and Tranche B-5 Term Loans on a pro rata basis on the third Business Day following the date of such transaction in an amount equal to 50% of the Net Cash Proceeds thereof and (ii) unless a Reinvestment Notice shall be delivered in respect of the remaining 50% of such Net Cash Proceeds, the Borrower shall further prepay the Tranche B-4 Term Loans and Tranche B-5 Term Loans on a pro rata basis on the third Business Day following the date of such transaction in an amount equal to the remaining 50% of such Net Cash Proceeds, and if such a Reinvestment Notice has been delivered, then on each Reinvestment Prepayment Date relating thereto, the Borrower shall prepay the Tranche B-4 Term Loans and Tranche B-5 Term Loans on a pro rata basis in an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event.

 

(c)            (d) If at any time after the RefinancingThird Amendment Effective Date, the aggregate Revolving Extensions of Credit then outstanding exceed the Revolving Commitments then in effect, the Borrower (without notice or demand) shall immediately prepay outstanding Swingline Loans or Revolving Loans and pay any unpaid Reimbursement Obligations (or, if no Swingline Loans or Revolving Loans are outstanding, Cash Collateralize outstanding Letters of Credit) in an amount sufficient to eliminate any such excess.

 

(d)            (e) Mandatory prepayments of Term Loans shall be applied first to Base Rate Loans to the full extent thereof and then to Eurodollar Loans and shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. Each such prepayment shall be credited to prepay in direct order of maturity the unpaid amounts due onthe remaining scheduled installments of the Term Facilities thereof as specified by the Borrower or, if not specified, to the next eight scheduled quarterly installments of the Tranche B-4 Term Loans and Tranche B-5 Term Loans, ratably,in direct order of maturity and thereafter to the remaining scheduled quarterly installments of the Tranche B-4 Term Loans and Tranche B-5 Term Loans, ratably, on a pro rata basis.

 

(e)            The Borrower shall provide the Administrative Agent written notice of any mandatory prepayment of Term Loans required to be made pursuant to Sections 4.2(a) and (b), three (3) Business Days (or with respect to any mandatory prepayments upon the Incurrence of any Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt or other Credit Agreement Refinancing Indebtedness pursuant to Section 4.2(a), one (1) Business Day prior thereto in the case of any Base Rate Loans being prepaid) prior to the date of prepayment (or such later time as the Administrative Agent may agree in its sole discretion), which notice shall specify the date and amount of prepayment; provided, that such notice may be conditioned on consummation of such mandatory prepayment event and receipt of Net Cash Proceeds thereof by the applicable Group Member. Other than with respect to mandatory prepayments upon the Incurrence of

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any Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt or other Credit Agreement Refinancing Indebtedness pursuant to Section 4.2(a), the applicable Lenders may elect not to accept any mandatory prepayment (each such Lender, a “Declining Lender”) by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m., New York City time, one Business Day prior to the date of such prepayment. Any prepayment amount declined by the Declining Lenders (the “Declined Amount”) shall be retained by the Borrower.

 

(f)             Notwithstanding any other provisions of this Section 4.2 to the contrary, with respect to any prepayment required pursuant to Section 4.2(a) or (b), if at the time of such prepayment, the Group Member receiving the Net Cash Proceeds (i) is prohibited, restricted or delayed by applicable local law from repatriating such Net Cash Proceeds to the Borrower, the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in Section 4.2(a) or (b) but may be retained by the applicable Group Member so long, but only so long, as the applicable local law will not permit repatriation to the Borrower, and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law, such repatriation will be effected and such repatriated Net Cash Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 4.2(a) or (b) to the extent provided therein or (ii) cannot repatriate such funds to the Borrower without (in the good faith determination of the Borrower) the repatriation of such Net Cash Proceeds (or a portion thereof) that would otherwise be required to be applied pursuant to Section 4.2(a) or (b) resulting in material adverse tax consequences, the Net Cash Proceeds (or portion thereof) so affected may be retained by the applicable Group Member (the Borrower hereby agrees to cause the applicable Group Member to promptly use commercially reasonable efforts to take all actions within the reasonable control of the Borrower that are reasonably required to eliminate such tax effects) until such time as such material adverse costs would not apply to the repatriation thereof, at which time the mandatory prepayments otherwise required by Section 4.2(a) or (b) with respect to such Net Cash Proceeds shall be made.

 

4.3.          Conversion and Continuation Options. (a)  The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 12:00 noon, New York City time, on the Business Day preceding the proposed conversion date,; provided, that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 1:00 p.m., New York City time, on the second Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefore),; provided, that no Base Rate Loan under a particular Facility may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions. If the Borrower requests a conversion to Eurodollar Loans in any such notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

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(b)            Any Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,; provided, that no Eurodollar Loan under a particular Facility may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has, or the Majority Facility Lenders in respect of such Facility have, determined in its or their sole discretion not to permit such continuations, and; provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraphSection 4.3(b) or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period. So long as no Event of Default has occurred and is continuing, if the Borrower requests a continuation of Eurodollar Loans in any such notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

4.4.         Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of Eurodollar Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than fifteen Eurodollar Tranches shall be outstanding at any one time.

 

4.5.         Interest Rates and Payment Dates; Administrative Agent Fees; Other Fees. (a)  Each Eurodollar Loan shall bear interest on the outstanding principal amount thereof for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin.

 

(b)            Each Base Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Base Rate plus the Applicable Margin.

 

(c)             (i) If any portion of the principal of any Loan or Reimbursement Obligation is not paid when due (whether at the stated maturity, by acceleration or otherwise), such portion of such principal shall bear interest at a rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant to Section 4.5(a) or 4.5(b) plus 2.00% per annum or (y) in the case of Reimbursement Obligations, the rate applicable to Base Rate Loans under the Revolving Facility plus 2.00% per annum and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any commitment fee or other amount payable hereunder is not paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans under the relevant Facility plus 2.00% per annum (or, in the case of any such other amounts that do not relate to a particular Facility, the rate then applicable to Base Rate Loans under the Revolving Facility plus 2.00% per annum), in each case, with respect to both clause (i) and clause (ii) above, from the date of such non-payment until such amount is paid in full (as well after as before judgment).

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(d)            Interest shall be payable in arrears on each Interest Payment Date,; provided, that interest accruing pursuant to paragraphSection 4.5(c) of this Section shall be payable from time to time on demand.

 

(e)             The Borrower agrees to pay to the Administrative Agent and the Other Representatives any fees in the amounts and on the dates previously agreed to in writing by the Borrower, the Other Representatives and the Administrative Agent in connection with this Agreement.

 

4.6.          Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to Base Rate Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change in the Base Rate or the Statutory Reserve Rate shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate. Interest shall accrue on each Loan for each day on which it is made or outstanding, except the day on which it is repaid unless it is repaid on the same day that it was made.

 

(b)            Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 4.5(a).

 

(c)             In the event that any financial statement or compliance certificate delivered pursuant to Sections 7.1 or 7.2 respectively is inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or Commitment Fee Rate for any period (an “Applicable Period”) than the Applicable Margin or Commitment Fee Rate applied for such Applicable Period respectively, then (i) the Borrower shall promptly deliver to the Administrative Agent a corrected financial statement and a corrected compliance certificate for such Applicable Period, (ii) the Applicable Margin and the Commitment Fee Rate shall be determined based on the corrected compliance certificate for such Applicable Period, and (iii) the Borrower shall promptly pay to the Administrative Agent (for the account of the Lenders and the Issuing Lenders during the Applicable Period or their successors and assigns) the accrued additional interest owing as a result of such increased Applicable Margin and Commitment Fee Rate for such Applicable Period. This Section 4.6(c) shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 4.5(b) and Section 9 hereof, and shall survive the termination of this Agreement.

 

4.7.          Inability to Determine Interest Rate.

 

(a)             If prior to the first day of any Interest Period:

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(i)             the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate or the Eurodollar Base Rate, as applicable, for a Loan for (including, without limitation, because the LIBOR Screen Rate is not available or published on a current basis), for the applicable currency and such Interest Period, or

 

(ii)            the Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that the Eurodollar Rate or the Eurodollar Base Rate, as applicable, determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,

 

then the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as Base Rate Loans (provided, that the Borrower may rescind such request promptly after receipt of such notice), (y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted, on the last day of the then-current Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurodollar Loans.

 

(b)            If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 4.7(a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in Section 4.7(a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBOR Screen Rate has made a public statement that the administrator of the LIBOR Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBOR Screen Rate), (x) the administrator of the LIBOR Screen Rate has made a public statement identifying a specific date after which the LIBOR Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBOR Screen Rate), (y) the supervisor for the administrator of the LIBOR Screen Rate has made a public statement identifying a specific date after which the LIBOR Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBOR Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Eurodollar Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other

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related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin); provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 11.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this Section 4.7(b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 4.7(b), only to the extent the LIBOR Screen Rate for the applicable currency and such Interest Period is not available or published at such time on a current basis), (x) any request for the conversion or continuation of any Eurodollar Loans shall be ineffective and (y) any request for a borrowing of Eurodollar Loans denominated in Dollars shall be deemed to be a request for a Base Rate Loan.

 

4.8.          Pro Rata Treatment and Payments. (a)  Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages, as the case may be of the relevant Lenders.

 

(b)            Each payment (including each prepayment but excluding any purchase of Loans pursuant to Section 11.6(g)) by the Borrower on account of principal of and interest on the Tranche B-4 Term Loans and Tranche B-5 Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Tranche B-4 Term Loans and Tranche B-5 Term Loans then held by the Term Lenders. Amounts prepaid on account of the Term Loans may not be reborrowed.

 

(c)             Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.

 

(d)            All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment

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of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

 

(e)             Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraphSection 4.8(e) shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.

 

(f)             Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

 

4.9.          Requirements of Law. (a)  If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof, or compliance by any Lender or the Administrative Agent with any request or directive whether or not having the force of law from any central bank or other Governmental Authority made subsequent to the date such Lender or the Administrative Agent, as applicable, becomes a party hereto:

 

(i)              shall subject any Lender or the Administrative Agent to any taxTax of any kind whatsoever with respect to this Agreement, or any other Loan Documents, and Commitment or Obligation, any Letter of Credit, any Application or any Eurodollar Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for (A) changes in the rate of net income taxes, capital taxes, branch profits taxes, and franchise taxes (imposed in lieu of income taxes) and net worth taxes (imposed in lieu of income taxes)

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and (B) Non-Excluded Taxes imposed on amounts payable hereunder, Other Taxes and Excluded Taxes,; provided, that this provision shall not affect any obligation of the Borrower under Section 4.10);

 

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

 

(iii)          shall impose on such Lender any other condition;

 

and the result of any of the foregoing is to increase the cost to such Lender or the Administrative Agent, by an amount that such Lender or the Administrative Agent, as applicable, reasonably deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender or the Administrative Agent, upon its written demand (accompanied by a certificate of the type described in clauseSection 4.9(c) below), any additional amounts necessary to compensate such Lender or the Administrative Agent for such increased cost or reduced amount receivable. If any Lender or the Administrative Agent becomes entitled to claim any additional amounts pursuant to this paragraphSection 4.9(a), it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.

 

(b)           If any Lender shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy or liquidity requirements whether or not having the force of law from any Governmental Authority made subsequent to the date such Lender becomes a party hereto shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity requirements and such Lender’s desired return on capital) by an amount reasonably deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request (accompanied by a certificate of the type described in clause (c) below) therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction. For purposes of this Agreement, and notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be

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have been enacted, adopted or issued after the date each Lender has become a party hereto, regardless of the date such act, requests, rules, regulations, guidelines or directives enacted, adopted or issued.

 

(c)             A certificate as to any additional amounts payable pursuant to this Section 4.9 submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section 4.9, the Borrower shall not be required to compensate a Lender pursuant to this Section 4.9 for any amounts Incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided, that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section 4.9 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

 

4.10.       Taxes. (a)  Except to the extent required under applicable law, all payments made under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, value added taxes, or any other goods and services, use or sales taxes, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto (“any Taxes. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is a Non-Excluded Tax (as defined below), then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 4.10) the Administrative Agent or Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made; provided, however, that, for the avoidance of doubt, the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any Excluded Taxes.

 

(b)             ). Non-Excluded Taxes” shall mean all Taxes other than Excluded Taxes. “Excluded Taxes” shall mean Taxes (i) measured by net income taxes(however denominated), branch profits taxes, franchise taxes (imposed in lieu of net income taxes) and net worth taxes (imposed in lieu of net income taxes) imposed on anyTaxes and franchise Taxes imposed on the Administrative Agent or any Lender or its applicable lending office or any branch, in each case as a result of a present or former connection between suchthe Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such taxTax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from suchthe Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced, this Agreement or any other Loan Document). If any Non-Excluded Taxes or Other Taxes are

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required to be withheld from any amounts payable by or on behalf of the Borrower or any other Loan Party to any Agent or any Lender hereunder or any other Loan Document (or are required to be withheld or paid by such Agent or Lender), the amounts so payable to such Agent or such Lender shall be increased by such Loan Party to the extent necessary to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement or any other Loan Document that would have been received had no such withholding been required, provided, however, that the Borrower shall not be required to increase any such amounts payable to any Lender or Agent with respect to any, and Excluded Taxes shall include, Taxes (i, or sold or assigned an interest in any Loan or Loan Document), (ii) that are attributable to such Lender’s or the Administrative Agent’s failure to comply (other than as a result of any change in any Requirement of Law) with the requirements of paragraph (d) of this SectionSections 4.10(e) or (f), (iiiii) that are United States federal withholding taxes imposed on amounts payable to such Lender or the Administrative Agent at the time such Lender or the Administrative Agent becomes a party to this Agreement (other than pursuant to a replacement by the Borrower under Section 4.13), except to the extent that such Lender’s or the Administrative Agent’s assignor (if any) was entitled, at the time of assignment to receive additional amounts from the Borrower with respect to the Non-Excluded Taxes pursuant to this paragraph (a) or (g) or (iii) U.S. federalSection 4.10(b) or Section 4.10(h) and (iv) any withholding taxes imposed under FATCA.

 

(c)            (b) In addition, but without duplication of paragraphSection 4.10(a), the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(d)            (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by or on account of the Borrowera Loan Party, as promptly as possible thereafter the Borrower shall send to the Administrative Agent for its own account or for the account of the relevant Agent or Lender, as the case may be, a certified copy of an original official receipt received by the Borrower showing payment thereof. If the Borrower fails to pay or cause to be paid any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit or cause to be remitted to the Administrative Agent the required receipts or other required documentary evidence, the BorrowerLoan Parties shall indemnify the AgentsAdministrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by anythe Administrative Agent or any Lender as a result of any such failure.

 

(e)            (d) Each Lender or the Administrative Agent (or Transferee) that is not a “United States person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) two copies of either U.S. Internal Revenue Service Form W-8IMY (together with any required attachments), Form W-8EXP and/or Form W-8BEN or W-8BEN-E (claiming benefits of an applicable tax treaty) or Form W-8ECI, as applicable (or successor form) or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement substantially in the form of Exhibit F and a Form W-8BEN or W-8BEN-E, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete

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exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation). In addition, each Non-U.S. Lender shall deliver properly updated forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower or the Administrative Agent (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraphSection 4.10(e), a Non-U.S. Lender shall not be required to deliver any form pursuant to this paragraphSection 4.10(e) that such Non-U.S. Lender is not legally able to deliver. Each Lender or the Administrative Agent that is not a Non-U.S. Lender shall furnish an accurate and complete U.S. Internal Revenue Service Form W-9 (or successor form) establishing that such Lender or the Administrative Agent is not subject to U.S. backup withholding, and to the extent it may lawfully do so at such times, provide a new Form W-9 (or successor form) upon the expiration or obsolescence of any previously delivered form.

 

(f)             (e) A Lender or the Administrative Agent that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party,Tax with respect to payments under this Agreement or any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law and upon reasonable request in writing by the Borrower or the Administrative Agent