UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

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FORM 8-K

 

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CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (date of earliest event reported): June 28, 2018

 

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CONDUENT INCORPORATED

(Exact name of registrant as specified in its charter)

 

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100 Campus Drive, Suite 200

Florham Park, New Jersey

07932

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (844) 663-2638

Not Applicable

(Former name or former address, if changed since last report)

 

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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

 

 

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (CFR 240.12b-2). 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.  ☐

 

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On June 28, 2018, Conduent Incorporated, a New York corporation (the “Company”), entered into Amendment No. 3 (the “Amendment”) to the Credit Agreement, dated as of December 7, 2016 (as supplemented by the First Incremental Agreement, dated as of January 3, 2017, as amended by Amendment No. 1 dated as of April 7, 2017 and as amended by Amendment No. 2 dated as of October 10, 2017, the “Credit Agreement”), among the Company, its subsidiaries Conduent Business Services, LLC (f/k/a Xerox Business Services, LLC), Affiliated Computer Services International B.V. and Conduent Finance, Inc., the other guarantors party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.  All capitalized terms not defined herein are defined in the Credit Agreement.

Pursuant to the Amendment, (i) the existing Revolving Commitments under the Credit Agreement prior to the Amendment were refinanced with new Revolving Commitments and the Revolving Credit Maturity Date of the new Revolving Commitments has been extended from December 7, 2021 to December 7, 2022, (ii) the existing Term A Loans under the Credit Agreement prior to the Amendment were refinanced with new Term A Loans, the maturity date with respect to the new Term A Loans has been extended from December 7, 2021 to December 7, 2022 and the required amortization payments with respect to the new Term A Loans will begin on March 31, 2019, in quarterly amounts equal to 1.25% of the aggregate principal amount of the Term A Loans increasing to 2.50% beginning on March 31, 2021, and (iii) the Term B Loans were amended as set forth in the Amendment but the Amendment did not change the maturity date of the Term B Loans from December 7, 2023.  As a result of the Amendment, (i) the interest rate on Revolving Loans was reduced by 0.50% from 2.25% over LIBOR to 1.75% over LIBOR, with corresponding reductions in the step-downs applicable to the Revolving Loans, (ii) the interest rate on the Term A Loans was reduced by 0.50% from 2.25% over LIBOR to 1.75% over LIBOR, with corresponding reductions in the step-downs applicable to the Term A Loans, and (iii) the interest rate on the Term B Loans was reduced by 0.50% from 3.00% over LIBOR to 2.50% over LIBOR.  The commitment fees with respect to the Revolving Commitments are unchanged.  In addition, the Amendment (i) reset the “soft call” protection on the Term B Loans for six months, (ii) amended the mandatory prepayment provisions with respect to certain asset sales to permit the Company to apply the net cash proceeds thereof to prepay any indebtedness, (iii) reset the available dollar basket amount of incremental facilities permitted to be incurred to $300 million and amended the incremental facility provisions to permit the Company to incur incremental Term A Loans using such basket and (iv) made certain other changes to the Credit Agreement as set forth in the Amendment.  In connection with the Amendment, the Company was required to pay customary extension fees to the lenders holding Revolving Commitments and Term A Loans after giving effect to the Amendment.  The Amendment is expected to result in interest cost savings over the life of the Term A Loans, the Term B Loans and the Revolving Loan facility.

 

This Amendment did not change the outstanding principal balance of the $413,768,790 and €255,125,000 Term A Loan facility, the $750 million Term B Loan facility or the $750 million Revolving Loan facility under the Credit Agreement.  The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

The disclosure set forth above under Item 1.01 with respect to the Amendment to the Credit Agreement is incorporated by reference into this Item 2.03.

 

On June 28, 2018, the Company, through its subsidiaries, completed the divestiture of its commercial vehicle operations business.  The sale is a part of the Company’s previously announced plan to divest approximately $1 billion in revenue associated with non-core assets.

 

The Company issued a press release on June 28, 2018, announcing the completion of the divestiture, a copy of which is filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Forward Looking Statements

This report contains “forward-looking statements” that involve risks and uncertainties.  These statements can be identified by the fact that they do not relate strictly to historical or current facts, but rather are based on current expectations, estimates, assumptions and projections about the business process outsourcing industry and our business and financial results.  Forward-looking statements often include words such as “anticipates,” “estimates,” “expects,” “projects,” “intends,” “plans,” “believes” and words and terms of similar substance in connection with discussions of future operating or financial performance.  As with any projection or forecast, forward-looking statements are inherently susceptible to uncertainty and changes in circumstances.  Our actual results may vary materially from those expressed or implied in our forward-looking statements.  Accordingly, undue reliance should not be placed on any forward-looking statement made by us or on our behalf.  Important factors that could cause our actual results to differ materially from those in our forward-looking statements include government regulation, economic, strategic, political and social conditions and the following factors, among others: termination rights contained in our government contracts; our ability to renew commercial and government contracts awarded through competitive bidding processes; our ability to recover capital and other investments in connection with our contracts; our ability to attract and retain necessary technical personnel and qualified subcontractors; our ability to deliver on our contractual obligations properly and on time; competitive pressures; our significant indebtedness; changes in interest in outsourced business process services; our ability to obtain adequate pricing for our services and to improve our cost structure; claims of infringement of third-party intellectual property rights; the failure to comply with laws relating to individually identifiable information, and personal health information and laws relating to processing certain financial transactions, including payment card transactions and debit or credit card transactions; breaches of our security systems and service interruptions; our ability to estimate the scope of work or the costs of performance in our contracts; our ability to collect our receivables for unbilled services; a decline in revenues from or a loss or failure of significant clients; fluctuations in our non-recurring revenue; our failure to maintain a satisfactory credit rating; our ability to attract and retain key employees; increases in the cost of telephone and data services or significant interruptions in such services; our failure to develop new service offerings; our ability to receive dividends or other payments from our subsidiaries; changes in tax and other laws and regulations; changes in government regulation and economic, strategic, political and social conditions; changes in U.S. GAAP or other applicable accounting policies; the other risks and uncertainties detailed in the section titled “Risk Factors”, the “Legal Proceedings” section, the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and other sections of our Annual Report on Form 10-K, as well as in our Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the Securities and Exchange Commission.  We caution you that the foregoing list of important factors may not contain all of the material factors that are important to you.  Any forward-looking statements made by us in this current report speak only as of the date on which they are made.  We are under no obligation to, and expressly disclaim any obligation to, update or alter our forward-looking statements, whether as a result of new information, subsequent events or otherwise.

 

 

 

 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

	CONDUENT INCORPORATED
Date: June 28, 2018	By:	/s/ J. Michael Peffer
		Name:       J. Michael Peffer
		Position:  Secretary

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[Signature Page to Amendment No. 3]

 

[Signature Page to Amendment No. 3]

 

 

	CONDUENT HR CONSULTING, LLC CONDUENT IMAGE SOLUTIONS, INC. CONDUENT LENDING, INC. CONDUENT STATE HEALTHCARE, LLC
	By:	/s/ J. Michael Peffer
		Name:  J. Michael Peffer
		Title:    Vice President and Secretary

 

 

 

[Signature Page to Amendment No. 3]

 

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[Signature Page to Amendment No. 3]

 

 

	THE HUNTINGTON NATIONAL BANK, as an Additional Dollar Term A Lender
	By:	/s/ Phil Andresen
		Name:  Phil Andresen
		Title:    Assistant Vice President

 

	The Governor and Company of the Bank of Ireland, as an Additional Euro Term A Lender
	By:	/s/ Darragh O’Neill
		Name:  Darragh O’Neill
		Title:    Authorised Signatory

 

	By:	/s/ Ford Young
		Name:  Ford Young
		Title:    Authorised Signatory

 

 

[Signature Page to Amendment No. 3]

 

	CITIBANK, N.A., as a 2018 Revolving Lender
	By:	/s/ Caesar W. Wyszomirski
		Name:  Caesar Wyszomirski
		Title:    Director

 

 

 

[Signature Page to Amendment No. 3]

 

 

	JPMorgan Chase Bank, N.A., as a 2018 Revolving Lender
	By:	/s/ John Kowalczuk
		Name:  John Kowalczuk
		Title:    Executive Director

 

	JPMORGAN CHASE BANK, N.A.,     as Administrative Agent
	By:	/s/ John G. Kowalczuk
		Name:  John G. Kowalczuk
		Title:    Executive Director

 

 

 

[Signature Page to Amendment No. 3]

 

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Exhibit B to Amendment No. 3

(Inserted text is marked as underscored and deleted text is marked as strikethrough)

CREDIT AGREEMENT

dated as of December 7, 2016

among

CONDUENT INCORPORATED,

as Holdings,

XEROX CONDUENT BUSINESS SERVICES, LLC (f/k/a XEROX BUSINESS SERVICES, LLC),

as the U.S. Borrower,

AFFILIATED COMPUTER SERVICES INTERNATIONAL B.V.,

as the Dutch Borrower,

CONDUENT FINANCE, INC.,

THE LENDERS PARTY HERETO,

and

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

___________________________

JPMORGAN CHASE BANK, N.A.

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

BNP PARIBAS SECURITIES CORP.

CITIGROUP GLOBAL MARKETS, INC.

CREDIT SUISSE SECURITIES (USA) LLC

GOLDMAN SACHS BANK USA

and

MIZUHO BANK, LTD.,

as Joint Bookrunners and Joint Lead Arrangers

THEMUFG BANK OF TOKYO-MITSUBISHI UFJ, LTD.

PNC CAPITAL MARKETS LLC

and

SUNTRUST BANK,

as Co-Documentation Agents

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Syndication Agent

THE TERM B LOANS ISSUED PURSUANT TO THIS AGREEMENT WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED FROM TIME TO TIME. BEGINNING NO LATER THAN 10 DAYS AFTER THE CLOSING DATE, A LENDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY OF THE TERM B LOANS BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE U.S. BORROWER AT THE FOLLOWING ADDRESS: XEROX BUSINESS SERVICES, LLC, 233 MOUNT AIRY ROAD, SUITE 100, BASKING RIDGE, NEW JERSEY, 07920, TELEPHONE NUMBER (908) 758-1200.

 

ARTICLE I
DEFINITIONS
SECTION 1.01.	Defined Terms	1
SECTION 1.02.	Classification of Loans and Borrowings	3941
SECTION 1.03.	Terms Generally	3942
SECTION 1.04.	Accounting Terms; GAAP	4042
SECTION 1.05.	Payments on Business Days	4042
SECTION 1.06.	Limited Condition Transactions	4042
SECTION 1.07.	Rounding	4143
SECTION 1.08.	Letter of Credit Amounts	4143
SECTION 1.09.	Currency Equivalents Generally	4143
SECTION 1.10.	Additional Alternative Currencies	4244
ARTICLE II
THE CREDITS
SECTION 2.01.	Commitments	4244
SECTION 2.02.	Loans and Borrowings	4345
SECTION 2.03.	Requests for Borrowings	4346
SECTION 2.04.	Swingline Loans	4447
SECTION 2.05.	Letters of Credit.	4749
SECTION 2.06.	Funding of Borrowings	5355
SECTION 2.07.	[Reserved]	5356
SECTION 2.08.	Termination and Reduction of Commitments	5356
SECTION 2.09.	Repayment of Loans; Evidence of Debt	5456
SECTION 2.10.	Prepayment of Loans	5759
SECTION 2.11.	Fees	6163
SECTION 2.12.	Interest	6364
SECTION 2.13.	Alternate Rate of Interest	6365
SECTION 2.14.	Increased Costs	6466
SECTION 2.15.	Break Funding Payments	6567
SECTION 2.16.	Taxes	6568
SECTION 2.17.	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	6770
SECTION 2.18.	Mitigation Obligations; Replacement of Lenders	6971
SECTION 2.19.	Incremental Facilities	7072
SECTION 2.20.	Extended Term Loans and Extended Revolving Commitments	7274
SECTION 2.21.	Defaulting Lenders	7376
SECTION 2.22.	Illegality	7578
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01.	Organization; Powers; Subsidiaries	7578
SECTION 3.02.	Authorization; Enforceability	7679
SECTION 3.03.	Governmental Approvals; No Conflicts	7679
SECTION 3.04.	Financial Statements; Financial Condition; No Material Adverse Effect	7679
SECTION 3.05.	Properties	7679
SECTION 3.06.	Litigation and Environmental Matters	7780

SECTION 3.07.	Compliance with Laws	7780
SECTION 3.08.	Investment Company Status	7780
SECTION 3.09.	Taxes	7780
SECTION 3.10.	Solvency	7780
SECTION 3.11.	ERISA	7780
SECTION 3.12.	Disclosure	7880
SECTION 3.13.	Federal Reserve Regulations	7881
SECTION 3.14.	Security Interests	7881
SECTION 3.15.	USA PATRIOT Act	7881
SECTION 3.16.	Anti-Corruption Laws and Sanctions	7881
SECTION 3.17.	Insurance	7881
ARTICLE IV
CONDITIONS
SECTION 4.01.	Closing Date	7982
SECTION 4.02.	Initial Term A Loan Funding Date	8183
SECTION 4.03.	Delayed Draw Term A Loan Funding Date	8184
SECTION 4.04.	Conditions to all Credit Events	8284
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01.	Financial Statements and Other Information	8285
SECTION 5.02.	Notices of Material Events	8487
SECTION 5.03.	Existence; Conduct of Business	8487
SECTION 5.04.	Payment of Taxes	8487
SECTION 5.05.	Maintenance of Properties; Insurance	8487
SECTION 5.06.	Books and Records; Inspection Rights	8588
SECTION 5.07.	Compliance with Laws	8588
SECTION 5.08.	Use of Proceeds and Letters of Credit	8588
SECTION 5.09.	Further Assurances; Additional Security and Guarantees	8589
SECTION 5.10.	Maintenance of Ratings	8790
SECTION 5.11.	Designation of Subsidiaries	8790
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01.	Indebtedness	8790
SECTION 6.02.	Liens	9093
SECTION 6.03.	Fundamental Changes	9295
SECTION 6.04.	Restricted Payments	9396
SECTION 6.05.	Investments	9497
SECTION 6.06.	Prepayments, Etc. of Indebtedness	96100
SECTION 6.07.	Transactions with Affiliates	97100
SECTION 6.08.	Changes in Fiscal Year	98101
SECTION 6.09.	Financial Covenant	98101
SECTION 6.10.	Burdensome Agreements	98101
SECTION 6.11.	Dispositions	99102
SECTION 6.12.	Lines of Business	100104
SECTION 6.13.	Amendments to Organizational Documents	100104
SECTION 6.14.	Certain Transactions Prior to the Spin-Off	100104

SECTION 6.15.	Holdings Covenant	100104
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01.	Notices	106111
SECTION 9.02.	Waivers; Amendments	108113
SECTION 9.03.	Expenses; Indemnity; Damage Waiver	109115
SECTION 9.04.	Successors and Assigns	111116
SECTION 9.05.	Survival	114120
SECTION 9.06.	Counterparts; Integration; Effectiveness	114120
SECTION 9.07.	Severability	114120
SECTION 9.08.	Right of Setoff	115120
SECTION 9.09.	Governing Law; Jurisdiction; Consent to Service of Process	115121
SECTION 9.10.	WAIVER OF JURY TRIAL	116121
SECTION 9.11.	Headings	116121
SECTION 9.12.	Confidentiality	116121
SECTION 9.13.	USA PATRIOT Act	117122
SECTION 9.14.	Interest Rate Limitation	117122
SECTION 9.15.	No Fiduciary Duty	117123
SECTION 9.16.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	118123
SECTION 9.17.	Dutch Borrower Representation	118124

 

 

 

SCHEDULES:
Schedule 2.01	–	Commitments / Specified LC Exposure Sublimits
Schedule 3.01	–	Subsidiaries
Schedule 5.09(c)	–	Post-Closing Matters
Schedule 6.01	–	Existing Indebtedness
Schedule 6.02	–	Existing Liens
Schedule 6.05(f)	–	Investments
Schedule 6.07	–	Affiliate Transactions
Schedule 6.10	–	Burdensome Agreements
Schedule 6.11	–	Dispositions
Schedule 9.01	–	Notices
EXHIBITS:
Exhibit A	–	Form of Assignment and Assumption
Exhibit B-1	–	Form of InitialEuro Term A Loan Note
Exhibit B-2	–	Form of Delayed DrawDollar Term A Loan Note
Exhibit B-3	–	Form of Term B Loan Note
Exhibit C	–	Form of Revolving Note
Exhibit D-1	–	Form of Security Agreement
Exhibit D-2	–	Form of Holdings Pledge Agreement
Exhibit E	–	Form of Borrowing Request
Exhibit F	–	Form of Swingline Loan Notice
Exhibit G	–	Form of Compliance Certificate
Exhibit H	–	Form of Guarantee Agreement
Exhibit I-1	–	Form of U.S. Tax Certificate (For Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit I-2	–	Form of U.S. Tax Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit I-3	–	Form of U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit I-4	–	Form of U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit J	–	Form of First Lien Intercreditor Agreement
Exhibit K	–	Form of Discounted Prepayment Option Notice
Exhibit L	–	Form of Lender Participation Notice
Exhibit M	–	Form of Discounted Voluntary Prepayment Notice

 

CREDIT AGREEMENT (this “Agreement”) dated as of December 7, 2016, among CONDUENT INCORPORATED, CONDUENT BUSINESS SERVICES, LLC (f/k/a XEROX BUSINESS SERVICES, LLC), AFFILIATED COMPUTER SERVICES INTERNATIONAL B.V., CONDUENT FINANCE, INC., the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.

The parties hereto agree to the following:

ARTICLE I

SECTION 1.01.      Defined Terms.  As used in this Agreement, the following terms have the meanings specified below:

“Acceptable Discount” has the meaning assigned to such term in Section 2.10(c)(iii).

“Acceptance Date” has the meaning assigned to such term in Section 2.10(c)(ii).

“Acquired Entity or Business” means each Person, property, business or assets acquired by the U.S. Borrower or a Subsidiary, to the extent not subsequently sold, transferred or otherwise disposed of by the U.S. Borrower or such Subsidiary.

“Act” has the meaning assigned to such term in Section 9.13.

“Additional Credit Extension Amendment” means an amendment to this Agreement (which may, at the option of the Administrative Agent, be in the form of an amendment and restatement of this Agreement) providing for any Incremental Term Loans, Increased Commitments, Replacement Term Loans, Extended Term Loans or Extended Revolving Commitments, which shall be consistent with the applicable provisions of this Agreement relating to Incremental Term Loans, Increased Commitments, Replacement Term Loans, Extended Term Loans or Extended Revolving Commitments and otherwise satisfactory to the Administrative Agent and the U.S. Borrower.

 

“Adjusted LIBO Rate” means, with respect to any Loan for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the Eurocurrency Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders hereunder, or any successor administrative agent.

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 9.01, or such other address or account as the Administrative Agent may from time to time notify to the Borrowers and the Lenders.

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

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Agency Fee Letter” means the administrative agency fee letter, dated as of the Closing Date, between the U.S. Borrower and the Administrative Agent.

“Agreement” has the meaning assigned to such term in the preamble hereto.

“Alternative Currency” means each of Euros, Canadian Dollars, Sterling and any other currency added as an “Alternative Currency” pursuant to Section 1.111.10 hereof.

“Alternative Currency L/C Sublimit” means, with respect to all Letters of Credit denominated in Alternative Currencies, the Dollar Equivalent of $300,000,000.

“Alternative Currency Revolving Sublimit” means, with respect to all Revolving Loans denominated in Alternative Currencies, the Dollar Equivalent of $450,000,000.

“Amendment No. 1” means that certain Amendment No. 1 to this Agreement, dated as of the Amendment No. 1 Effective Date, among Holdings, the Borrowers, Conduent Finance, the Administrative Agent and the Lenders party thereto.

“Amendment No. 2” means that certain Amendment No. 2 to this Agreement, dated as of the Amendment No. 2 Effective Date, among Holdings, the Borrowers, Conduent Finance, the Administrative Agent and the Lenders party thereto.

“Amendment No. 1 Effective Date” means April 7, 2017.

“Amendment No. 2 Effective Date” means October 10, 2017.

“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction applicable to the U.S. Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.

“Applicable Discount” has the meaning assigned to such term in Section 2.10(c)(iii).

“Applicable Percentage” means, with respect to any Lender and as applicable, (a) with respect to Revolving Loans, LC Exposure or Swingline Loans of any Class, a percentage equal to a fraction the numerator of which is such Lender’s Revolving Commitment of such Class and the denominator of which is the aggregate Revolving Commitment of such Class of all Revolving Lenders of such Class (and if the Revolving Commitments of such Class have terminated or expired, the Applicable Percentages shall be determined based upon such Lender’s share of the aggregate Revolving Credit Exposures of such Class at that time) and (b) with respect to the Term Loans of any Class, a percentage equal to a fraction the numerator of which is such Lender’s outstanding principal amount of the Term Loans of such Class and the denominator of which is the aggregate outstanding amount of the Term Loans of such Class.

“Applicable Period” has the meaning assigned to such term in the definition of “Applicable Rate.”

“Applicable Rate” means (a) (i) 2.25%, in the case of Eurocurrency Term A Loans and Eurocurrency Revolving Loans, (bfor any day prior to the Amendment No. 3 Effective Date, and (ii) 1.75%, in the case of Eurocurrency Term A Loans and Eurocurrency Revolving Loans, for any day on or after the Amendment No. 3 Effective Date, (b) (i) 1.25%, in the case of Base Rate Term A Loans, Base Rate Revolving Loans and Swingline Loans, (c) (i) 4.00for any day prior to the Amendment No. 3 Effective Date, and (ii) 0.75%, in the case of Base Rate Term A Loans, Base Rate Revolving Loans and Swingline Loans, for any day on or after the Amendment No. 3 Effective Date, (c) (i) 3.00%, in the case of Eurocurrency Term B Loans and Eurocurrency First Incremental Term Loans, for any day prior to the Amendment No. 23 Effective Date, and (ii) 3.002.50%, in the case of Eurocurrency Term B Loans and Eurocurrency First Incremental Term Loans, for any day on or after the Amendment No. 23 Effective Date, (d) (i) 3.00%, in the case of Base Rate Term B Loans and Base Rate First Incremental Term Loans, for any day prior to the Amendment No. 2 Effective Date, and (ii) 2.00%, in the case of Base Rate Term B Loans and Base Rate First Incremental Term Loans, for any day prior to the Amendment No. 3 Effective Date, and (ii) 1.50%, in the case of Base Rate Term B Loans and Base Rate First Incremental Term Loans, for any day on or after the Amendment No. 23 Effective Date and (e) 0.375%, in the case of commitment fees; provided that, the Applicable Rate with respect to Term A Loans, Revolving Loans, Swingline Loans and commitment fees shall be subject to adjustment following each date of delivery of Financials after the Delayed Draw FundingAmendment No. 3 Effective Date, based on the Total Net Leverage Ratio as of the end of the period covered by such Financials, as follows:

 

Any increase or decrease in the Applicable Rate for Term A Loans, Revolving Loans, Swingline Loans or commitment fees resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date of delivery of the Financials; provided that Level 1 pricing shall apply at the option of the Administrative Agent or at the request of the Required Revolving/TLA Lenders as of the first Business Day after the date on which such Financials were required to have been delivered but have not been delivered pursuant to Section 5.01(a) or (b) and shall continue to so apply to and including the date on which such Financials are so delivered (and thereafter the Level otherwise determined in accordance with this definition shall apply).

In the event that any Financials previously delivered were incorrect or inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, then (i) the U.S. Borrower shall as soon as practicable deliver to the Administrative Agent the correct Financials for such Applicable Period, (ii) the Applicable Rate shall be determined as if the Level for such higher Applicable Rate were applicable for such Applicable Period, and (iii) the U.S. Borrower shall within three Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement.  This paragraph shall not limit the rights of the Administrative Agent and the Lenders with respect to any Event of Default.

“Applicable Time” means (a) with respect to any Borrowings and payments in Dollars, 2:00 p.m., New York City time, and (b) with respect to any Borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency, as may be reasonably determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment and notified to the relevant parties hereto.

“Approved Bank” has the meaning assigned to such term in the definition of “Cash Equivalents.”

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Arrangers” means JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), BNP Paribas Securities Corp. Citigroup Global Markets, Inc., Credit Suisse Securities (USA) LLC, Goldman Sachs Bank USA and Mizuho Bank, Ltd.

 

“Asset Sale” means any Disposition of Property or series of related Dispositions of Property pursuant to clause (k) of Section 6.11 which yields net cash proceeds to the U.S. Borrower or any of its Restricted Subsidiaries in excess of $20,000,000 in the aggregate for any such Disposition or series of related Dispositions.

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04 of this Agreement), and received by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

“Audited Financial Statements” shall have the meaning assigned to such term in Section 4.01(i).

“Auto-Extension Letter of Credit” has the meaning assigned to such term in Section 2.05(b)(iii).

“Availability Period” means the period from and including the Spin-Off Date to but excluding the earlier of the Revolving Credit Maturity Date and the date of termination of the Revolving Commitments in accordance with the provisions of this Agreement.

“Available Amount” means, at any time (the “Reference Time”), an amount equal to:

(a)            the sum, without duplication, of:

funds borrowed from the U.S. Borrower or any Restricted Subsidiary until and only to the extent such borrowing is repaid), plus

(b)           the sum, without duplication, of:

 

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

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

“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the FRBNY Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%;, provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the Eurocurrency RateLIBO Screen Rate (or if the LIBO 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, subject to the interest rate floor set forth in the definition of the term “Eurocurrency Rate.”.  Any change in the Base Rate due to a change in the Prime Rate, the FRBNY Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the FRBNY Rate or the Adjusted LIBO Rate, respectively.  If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.13 hereof, then the Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above.

 

“Bilateral Letter of Credit Facility” means any letter of credit facility of the U.S. Borrower or any Restricted Subsidiary entered into with a Lender or an Affiliate of a Lender other than pursuant to this Agreement.

“Bilateral Letter of Credit Facility Bank” means any holder of obligations owed pursuant to a Bilateral Letter of Credit Facility.

“Borrowers” means the U.S. Borrower and the Dutch Borrower.

“Borrower Materials” has the meaning assigned to such term in Section 9.01(c).

“Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect, (b) Term Loans of a single Class made on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect or (c) a Swingline Loan.

“Borrowing Request” means a request by a Borrower for a Borrowing in accordance with Section 2.03.

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with (a) a Eurocurrency Loan denominated in Dollars, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market, (b) any Borrowings or LC Disbursements that are the subject of a borrowing, drawing, payment, reimbursement or rate selection denominated in Euro, the term “Business Day” shall also exclude any day on which the Trans-European Real-time Gross Settlement Operating System (or any successor operating system) is not open for the settlement of payments in Euro and (c) a Eurocurrency Loan or Letter of Credit denominated in an Alternative Currency other than Euro, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in such Alternative Currency in the interbank market in the principal financial center of the country whose lawful currency is such Alternative Currency.

“Canadian Dollar” means the lawful currency of Canada.

“Capital Lease Obligations” of any Person means 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 on a balance sheet of such Person under GAAP as in effect on the Closing Date, and the amount of such obligations as of any date shall be the capitalized amount thereof determined in accordance with GAAP as in effect on the Closing Date that would appear on a balance sheet of such Person prepared as of such date.

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the applicable Issuing Bank and the Revolving Lenders, as collateral for LC Exposure, cash or deposit account balances pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable Issuing Bank (which documents are hereby consented to by the Revolving Lenders).  Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at the Administrative Agent.

 

 

 

 

“Cash Equivalents” means:

(a)         any evidence of Indebtedness issued or directly and fully and unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof and having a maturity of 24 months or less from the date of acquisition;

(b)         time deposits, certificates of deposit and bank notes of any financial institution that (i) is a Lender or an Affiliate of a Lender or (ii) is a member of the Federal Reserve System (or organized in any foreign country recognized by the United States) and whose senior unsecured debt is rated at least P-2, A-2 or F2, short-term, or A2, A or A, long-term, by Moody’s, S&P or Fitch (any such bank in the foregoing clause (i) or (ii) being an “Approved Bank”).  Issues with only one short-term credit rating must have a minimum credit rating of P-1, A‑-1 or F1;

(c)         commercial paper, including asset-backed commercial paper, and floating or fixed rate notes issued by an Approved Bank or a corporation or special purpose vehicle (other than an Affiliate or Subsidiary of the U.S. Borrower) organized and existing under the laws of the United States of America, any state thereof or the District of Columbia (or any foreign country recognized by the United States) rated at least A‑2 by S&P and at least P‑2 by Moody’s and having a maturity of not more than 12 months from the date of acquisition;

(d)         asset-backed securities rated Aaa, AAA or AAA by Moody’s, S&P or Fitch, with weighted average lives of 12 months or less (measured to the next maturity date);

(e)         repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed or insured by the government or any agency or instrumentality of the United States maturing within 365 days from the date of acquisition;

(f)          readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P or BBB- by Fitch, and in each such case with a “stable” or better outlook, with maturities of 24 months or less from the date of acquisition;

(g)         Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated AAA (or the equivalent thereof) or better by S&P, Aaa3 (or the equivalent thereof) or better by Moody’s or AAA (or the equivalent thereof) by Fitch (or reasonably equivalent ratings of another internationally recognized rating agency);

(h)         money market funds which invest substantially all of their assets in assets described in the preceding clauses (a) through (g); and

(i)          instruments equivalent to those referred to in clauses (a) through (h) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction.

“Cash Flow” means, with reference to any fiscal year, an amount (but not less than zero) equal to:

(a)         Consolidated Net Income for such period (adjusted to exclude (x) any gains attributable to Asset Sales and Casualty Events to the extent included in Net Cash Proceeds of such Asset Sales or Casualty Events and (y) any losses attributable to Asset Sales and Casualty Events); plus

 

 

(b)         the sum of all amounts deducted in arriving at such Consolidated Net Income amount in respect of all charges for (without duplication) (i) depreciation of fixed assets and amortization of intangible assets for such period and (ii) all other non-cash charges for such period; plus

(c)         the amount, if any, by which Consolidated Working Capital of the U.S. Borrower and its Restricted Subsidiaries decreased during such period (but excluding any such decrease arising from any Permitted Acquisition or Disposition by the U.S. Borrower or any of its Restricted Subsidiaries or the reclassification during such period of current assets to long term assets (and vice versa) and current liabilities to long term liabilities (and vice versa) and the application of purchase accounting); minus

(d)         all non-cash gains, credits or benefits added in computing Consolidated Net Income for such period; minus

(e)         the amount, if any, by which Consolidated Working Capital of the U.S. Borrower and its Restricted Subsidiaries increased during such period (but excluding any such increase arising from any Permitted Acquisition or Disposition by the U.S. Borrower or any of its Restricted Subsidiaries or the reclassification during such period of current assets to long term assets (and vice versa) and current liabilities to long term liabilities (and vice versa) and the application of purchase accounting).

“Cash Management Bank” means any Person that is the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender at the time a Borrower or any Restricted Subsidiary initially incurred any Cash Management Obligation to such Person (or on the Closing Date, the Initial Term A Funding Date or the Delayed Draw Funding Date, in the case of Cash Management Obligations existing on such date).

“Cash Management Obligations” means obligations owed by a Borrower or any Restricted Subsidiary to any Cash Management Bank in respect of (x) treasury management services (including controlled disbursements, zero balance arrangements, cash sweeps, pooling arrangements, corporate credit card, purchase card and other card services (including commercial (or purchasing) card programs), automated clearinghouse transactions, return items, overdrafts, temporary advances, interest and fees and interstate depository network services) or (y) short-term loans or lines of credit not exceeding $10,000,000 in the aggregate, in each case provided to the U.S. Borrower or any Restricted Subsidiary.

“Casualty Event” means any event that gives rise to the receipt by a Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any tangible Property in excess of $20,000,000.

“CDOR Rate” means, for any Loans denominated in Canadian Dollars, the CDOR Screen Rate.

“CDOR Screen Rate” means, with respect to any Interest Period, the average rate for bankers acceptances as administered by the Investment Industry Regulatory Organization of Canada (or any other Person that takes over the administration of that rate) with a tenor equal in length to such Interest Period, as displayed on the CDOR page of the Reuters screen or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in its reasonable discretion.

“CFC” means (a) any Person that is a “controlled foreign corporation” within the meaning of Section 957 of the Code or (b) any direct or indirect subsidiary of any such Person.

“Change in Control” means (a) the acquisition of beneficial ownership, directly or indirectly, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the Closing Date) (other than, on or prior to the Spin-Off Date, Xerox and its subsidiaries), of Equity Interests in Holdings representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings, (b) a “change in control” or any comparable term under, and as defined in, the Senior Notes Indenture or any agreement governing Material Indebtedness, shall have occurred, (c) Holdings ceases to (i) directly own 100% of the Equity Interests of the U.S. Borrower and (ii) directly or indirectly

own 100% of the Equity Interests of the Dutch Borrower or (d) at any time after the Spin-Off Date, occupation of a majority of the seats (other than vacant seats) on the board of directors of the U.S. Borrower by Persons who were not (i) directors of the U.S. Borrower on the Spin-Off Date, (ii) nominated or appointed by the board of directors of the U.S. Borrower or (iii) approved by the board of directors of the U.S. Borrower as director candidates prior to their election to such board of directors.  For the avoidance of doubt, the consummation of the Spin-Off shall not constitute a Change in Control.

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

“Charges” has the meaning assigned to such term in Section 9.14.

“Class,” when used in reference to any (a) Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, InitialDollar Term A Loans, Delayed DrawEuro Term A Loans, Term B Loans, Incremental Term Loans of any series, Extended Term Loans of any series, Replacement Term Loans of any series or Swingline Loans and (b) when used with respect to any Commitment, refers to whether such Commitment is an Initial Term A Loan Commitment, Delayed Draw Term A Loan Commitment, Additional Dollar Term A Commitment, Additional Euro Term A Commitment, Term B Loan Commitment, Revolving Commitment or Extended Revolving Commitment of any series.

“Closing Date” means the date on which the conditions specified in Section 4.01 of this Agreement were satisfied (or waived in accordance with Section 9.02 of this Agreement).

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Co-Documentation Agents” means TheMUFG Bank of Tokyo-Mitsubishi UFJ, Ltd., PNC Capital Markets LLC and SunTrust Bank.

“Collateral” means all the “Collateral” (or any equivalent term) as defined in any Collateral Document and all other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Collateral Document to secure the Obligations.

“Collateral Documents” means, collectively, the Security Agreement, the Holdings Pledge Agreement, each guarantee agreement, security agreement, intellectual property security agreement, pledge agreement or other similar agreement delivered to the Administrative Agent and the Lenders pursuant to Section 5.09 and each of the other agreements, instruments or documents executed by any Loan Party that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

“Commitment” means a Revolving Commitment, Extended Revolving Commitment, Initial Term A Loan Commitment, Delayed Draw Term A Loan Commitment, Additional Dollar Term A Commitment, Additional Euro Term A Commitment, or Term B Loan Commitment.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Conduent Finance” means Conduent Finance, Inc., a Delaware corporation.

 

“Consolidated EBITDA” means, for any period with respect to the U.S. Borrower and its Restricted Subsidiaries, Consolidated Net Income for such period plus, without duplication and (except with respect to clause (viii) below) to the extent deducted in computing Consolidated Net Income for such period, the sum of:

minus, without duplication and to the extent included in Consolidated Net Income for such period, the sum of (i) any extraordinary or non-recurring or unusual income or gains, (ii) gains on Dispositions of assets outside of the ordinary course of business and (iii) other non-cash items increasing such Consolidated Net Income, all as determined on a consolidated basis in accordance with GAAP.

“Consolidated Net Income” means,  for any period, the consolidated net income (or loss) of the U.S. Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that, GAAP to the contrary notwithstanding, there shall be excluded, without duplication:

(a)            the net income (or loss) of any Person (other than a Restricted Subsidiary of the U.S. Borrower) in which the U.S. Borrower or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received in cash (or in kind and converted to cash) by the U.S. Borrower or such Restricted Subsidiary in the form of dividends or similar distributions;

 

(b)         solely for the purpose of determining the Available Amount, the net income (or loss) of any Restricted Subsidiary of the U.S. Borrower that is not a Loan Party to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or requirement of Law applicable to such Restricted Subsidiary, except to the extent that any such income is actually received in cash (or in kind and converted to cash) by the U.S. Borrower or a Restricted Subsidiary that is a Loan Party;

(c)         the cumulative effect of a change in accounting principles during such period;

(d)         any income (or loss) from discontinued operations;

(e)         any non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, employee benefit plans or agreements, stock options, restricted stock or other rights, and any non-cash deemed finance charges or expenses in respect of any pension liabilities or other retiree provisions or on the revaluation of any benefit plan obligation and any non-cash charges or expenses in respect of curtailments, discontinuations or modifications to pension plans; and

(f)          the effects of purchase accounting, fair value accounting or recapitalization accounting adjustments (including the effects of such adjustments pushed down to the U.S. Borrower and its Restricted Subsidiaries) resulting from the application of purchase accounting, fair value accounting or recapitalization accounting in relation to the Transactions or any acquisition or divestiture consummated before or after the Closing Date, and the amortization, write-down or write-off of any amounts thereof.

Notwithstanding the foregoing, with respect to any period ending on or prior to the Spin-Off Date, Consolidated Net Income will be deemed to be the Consolidated Net Income of the U.S. Borrower and the other subsidiaries of Xerox that will be Restricted Subsidiaries as of the Spin-Off Date, irrespective of whether such entities were Restricted Subsidiaries of the U.S. Borrower for the entirety of such period, in each case with such pro forma adjustments (including to give effect to the Transactions) as are appropriate and consistent with the definition of “Pro Forma Basis”, as determined in good faith by the U.S. Borrower.

“Consolidated Subsidiaries” means Subsidiaries that would be consolidated with Holdings in accordance with GAAP.

“Consolidated Total Assets” means, as of the date of any determination thereof, total assets of the U.S. Borrower and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.

“Consolidated Total Indebtedness” means at any time the sum, without duplication, of (i) the aggregate principal amount of Indebtedness of the U.S. Borrower and its Restricted Subsidiaries outstanding as of such time calculated on a consolidated basis in accordance with GAAP (other than Indebtedness described in clause (c), (d), (e) (except to the extent supporting Indebtedness described in clauses (a), (b) and (g) of the definition of “Indebtedness”), (h), (i) or (j) of the definition of “Indebtedness” (provided that there shall be included in Consolidated Total Indebtedness any Indebtedness in respect of drawings thereunder to the extent not reimbursed within two Business Days after the date of such drawing)) plus (ii) the principal amount of any obligations of any Person (other than the U.S. Borrower or any Restricted Subsidiary) of the type described in the foregoing clause (i) that are Guaranteed by the U.S. Borrower or any Restricted Subsidiary (whether or not reflected on a consolidated balance sheet of the U.S. Borrower).

“Consolidated Working Capital” means, at any time, Current Assets minus Current Liabilities, at such time.

“Contract Consideration” has the meaning assigned to such term in the definition of “Excess Cash Flow.”

 

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Control” means, with respect to any Person, the power to, directly or indirectly, direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

“Credit Event” means each of the following:  (a) a Borrowing and (b) an L/C Credit Extension.

“Credit Exposure” means, as to any Lender at any time, the sum of (a) such Lender’s Revolving Credit Exposure at such time, plus (b) the aggregate amount of its Term Loans outstanding at such time.

“CRR” means the Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012.

“Current Assets” means, at any date, all assets of the U.S. Borrower and its Restricted Subsidiaries which under GAAP would be classified as current assets on the consolidated balance sheet of the U.S. Borrower and its Restricted Subsidiaries (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties by the U.S. Borrower or any of its Restricted Subsidiaries), (ii) permitted loans to third parties or related parties, (iii) deferred bank fees and derivative financial instruments related to Indebtedness, (iv) deferred tax assets, (v) assets held for sale and (vi) pension assets).

“Current Liabilities” means, at any date, all liabilities of the U.S. Borrower and its Restricted Subsidiaries which under GAAP would be classified as current liabilities on the consolidated balance sheet of the U.S. Borrower and its Restricted Subsidiaries, other than (i) current maturities of long-term debt, (ii) outstanding revolving loans and letter of credit reimbursement obligations, (iii) accruals of interest expense (excluding interest expense that is due and unpaid), (iv) obligations in respect of derivative financial instruments related to Indebtedness, (v) deferred tax liabilities, (vi) liabilities in respect of unpaid earnouts, (vii) accruals relating to restructuring reserves, (viii) liabilities in respect of funds of third parties on deposit with the U.S. Borrower or any of its Restricted Subsidiaries, (ix) the current portion of any Capital Lease Obligation, (x) the current portion of any other long-term liability for borrowed money, (xi) permitted short term indebtedness from third parties and (xii) non-cash compensation liabilities.

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

“Declined Proceeds” has the meaning assigned to such term in Section 2.10(b)(v).

“Default” means any event or condition, which constitutes an Event of Default or, which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

“Default Rate” has the meaning assigned to such term in Section 2.12(c).

“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of any Class of Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the U.S. Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the U.S. Borrower, the Administrative Agent or any Issuing Bank or Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has

made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the U.S. Borrower, to confirm in writing to the Administrative Agent and the U.S. Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the U.S. Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of (A) a proceeding under any Debtor Relief Law or (B) a Bail-In Action, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; 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.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the U.S. Borrower, each Issuing Bank, the Swingline Lender and each Lender.

“Delayed Draw Funding Date” means the Spin-Off Date, or, if the anticipated Spin-Off Date is not a Business Day, the Business Day prior to the anticipated Spin-Off Date (as determined by the U.S. Borrower in good faith).

“Delayed Draw Term A Loan Commitment” means, with respect to each Delayed Draw Term A Lender, the commitment, if any, of such Lender to make Delayed Draw Term A Loans expressed as an amount representing the maximum possible aggregate amount of such Lender’s Delayed Draw Term A Loans hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Delayed Draw Term A Loan Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Delayed Draw Term A Loan Commitment, as applicable.  The initial aggregate amount of the Lenders’ Delayed Draw Term A Loan Commitments is equal to $421,675,200.”Delayed Draw Term A Loan Commitment Expiration Date” means the earlier of (a) the Special Mandatory Prepayment Date and (b) the making of the Delayed Draw Term A Loans on the Delayed Draw Fundingwas equal to $421,675,200 on the Closing Date.

“Delayed Draw Term A Lender” means a Lender with a Delayed Draw Term A Loan Commitment or an outstanding Delayed Draw Term A Loan.

“Delayed Draw Term A Loan” means a Loan made pursuant to Section 2.01(b).

 “Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the U.S. Borrower or a Restricted Subsidiary in connection with a disposition pursuant to Section 6.11 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or conversion of or collection on such Designated Non-Cash Consideration.

“Designated Preferred Stock” means Preferred Stock (other than Disqualified Equity Interests) of Holdings or the U.S. Borrower that is issued for cash (other than to a Restricted Subsidiary of the U.S. Borrower) and is so

designated as Designated Preferred Stock, pursuant to a certificate of a Responsible Officer, on or prior to the issue date thereof.

“Discount Range” has the meaning assigned to such term in Section 2.10(c)(ii).

“Discounted Prepayment Option Notice” has the meaning assigned to such term in Section 2.10(c)(ii).

“Discounted Voluntary Prepayment” has the meaning assigned to such term in Section 2.10(c)(i).

“Discounted Voluntary Prepayment Notice” has the meaning assigned to such term in Section 2.10(c)(v).

“Disposition” means, with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer, license, sublicense, abandonment or other disposition thereof, and the terms “Dispose” and “Disposed of” have correlative meanings, but excluding, licenses and leases entered into in the ordinary course of business or that are customarily entered into by companies in the same or similar lines of business (other than, for the avoidance of doubt, exclusive licenses entered into outside the ordinary course of business).

“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, public equity offering or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, public equity offering or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the expiration, cancellation, termination or cash collateralization of any Letters of Credit in accordance with the terms hereof), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests and except as permitted in clause (a) above), in whole or in part, (c) requires the scheduled payments of dividends in cash (for this purpose, dividends shall not be considered required if the issuer has the option to permit them to accrue, cumulate, accrete or increase in liquidation preference or if the U.S. Borrower has the option to pay such dividends solely in Qualified Equity Interests), or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Latest Maturity Date.

“Dollar Equivalent” means, at any date, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in a currency other than Dollars, such amount converted to Dollars by the Administrative Agent, or Issuing Bank, as applicable, at the Exchange Rate on such date.

“Dollar Term A Lender” means a Lender with an outstanding Dollar Term A Loan.

“Dollars” or “$” refers to lawful money of the United States of America.

“Domestic Subsidiary” means a Restricted Subsidiary organized under the laws of the United States, any state thereof or the District of Columbia.

“Dutch Borrower” means Affiliated Computer Services International B.V., a private limited company (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of the Netherlands, having its official seat in Amsterdam, the Netherlands and registered in the Trade Register of the Dutch Chamber of Commerce under number 34160388.

“Dutch Civil Code” means the Burgerlijk Wetboek of the Netherlands.

 

“ECF Payment” has the meaning assigned to such term in Section 2.10(b)(iv).

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

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

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

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 9.04(b)(v), (vi), (vii) and (viii) (subject to such consents, if any, as may be required under Section 9.04(b)(iii)).

“EMU” means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.

“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata and natural resources such as wetlands, flora and fauna.

“Environmental Laws” means all Laws relating to the pollution, the protection of the Environment, preservation or reclamation of natural resources, the Release or threatened Release of any Hazardous Materials or, as it relates to exposure to Hazardous Materials, health and safety matters.

 “Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the U.S. Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the U.S. Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ERISA Event” means (a) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Plan; (b) with respect to any Plan, the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (e) the incurrence by the U.S. Borrower, a Subsidiary or any

ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (f) the receipt by the U.S. Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (g) the incurrence by the U.S. Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the receipt by the U.S. Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the U.S. Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the impending imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent pursuant to Section 4245 of ERISA, or is in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA; (i) a failure by the U.S. Borrower, a Subsidiary or any ERISA Affiliate to pay when due (after expiration of any applicable grace period) any installment payment with respect to withdrawal liability under Section 4201 of ERISA; (j) the withdrawal of any of the U.S. Borrower, a Subsidiary or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA or (k) the imposition of a lien or security interest in favor of the PBGC or any Plan on any assets of the U.S. Borrower or any Subsidiary under Section 430(k) of the Code or under Section 4068 of ERISA.

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

“Euro” and “EUR” mean the lawful currency of the Participating Member States introduced in accordance with EMU Legislation.

“Euro Equivalent” means, at any date, (a) with respect to any amount denominated in Euros, such amount, and (b) with respect to any amount denominated in a currency other than Euros, such amount converted to Euros by the Administrative Agent at the Exchange Rate on such date.

“Eurocurrency Loan” means a Loan that bears interest at a rate based on the Eurocurrency Rate.

“Eurocurrency Rate” means, for any Interest Period with respect to (a) any Loan in any LIBOR Quoted Currency, the LIBO Screen Rate as of the Applicable Time on the Quotation Day for such currency and Interest Period and (b) any Loan in any Non-Quoted Currency, the applicable Local Screen Rate as of the Applicable Time on the Quotation Day for such currency and Interest Period; provided that, if a LIBO Screen Rate or a Local Screen Rate, as applicable, shall not be available at the applicable time for the applicable Interest Period  (an “Impacted Interest Period”), then the Eurocurrency Rate for such currency and Interest Period shall be the Interpolated Rate; provided, further, that if any Eurocurrency Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Event of Default” has the meaning assigned to such term in Article VII.

“Excess Cash Flow” means, with respect to any fiscal year, the amount (if any, but which amount shall not be less than zero) by which (a) Cash Flow during such period exceeds (b) the sum of (i) the aggregate amount of payments or repurchases made or otherwise paid by the U.S. Borrower and its Restricted Subsidiaries during such period in respect of all principal on all Indebtedness (whether at maturity, as a result of mandatory prepayment, acceleration or otherwise, but excluding voluntary prepayments deducted pursuant to Section 2.10(b)(iv)(B)), plus, (ii) to the extent each of the following is not deducted in computing Consolidated Net Income and without duplication:

 

(A)        without duplication of amounts deducted pursuant to this subclause (A) or subclause (D) below in a prior period, capital expenditures, capitalized software expenses and acquisitions of intellectual property of the U.S. Borrower and its Restricted Subsidiaries, in each case, made in cash during such period or, at the option of the U.S. Borrower, made prior to the date the applicable Excess Cash Flow payment is required to be made under Section 2.10(b)(iv) with respect to such period (except to the extent financed with long-term Indebtedness (other than revolving Indebtedness));

(B)         without duplication of amounts deducted pursuant to subclause (D) below in a prior period, the amount of (i) Investments made by the U.S. Borrower and its Restricted Subsidiaries pursuant to Sections 6.05(f), (h), (l) and (r) and (ii) Restricted Payments made by the U.S. Borrower and its Restricted Subsidiaries pursuant to Sections 6.04(c), (d), (g)(x) and (i), in each case, in cash (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness));

(C)         cash losses from any sale or disposition outside the ordinary course of business;

(D)         without duplication of amounts deducted from Excess Cash Flow in a prior period, the aggregate consideration required to be paid in cash by the U.S. Borrower and its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period or any planned cash expenditures (the “Planned Expenditures”), in each case, relating to Investments permitted pursuant to Sections 6.05(f), (h), (l) or (r), capital expenditures, capitalized software expenses or acquisitions of intellectual property to be, or expected to be, consummated or made during the period of two consecutive fiscal quarters of the U.S. Borrower following the end of such period (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness));  provided that to the extent the aggregate amount of cash actually utilized to finance such Investments permitted pursuant to Sections 6.05(f), (h), (l) or (r), capital expenditures, capitalized software expenses or acquisitions of intellectual property during such following period of two consecutive fiscal quarters is less than the Contract Consideration and the Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of two consecutive fiscal quarters;

(E)         the aggregate amount of expenditures (other than Investments or Restricted Payments) actually made by the U.S. Borrower and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed and amounts in respect thereof are not otherwise deducted in computing Consolidated Net Income for such period or any prior period (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness));

(F)         the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the U.S. Borrower and its Restricted Subsidiaries during such period that are made in connection with any prepayment of Indebtedness;

(G)         payments by the U.S. Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the U.S. Borrower and its Restricted Subsidiaries other than Indebtedness;

(H)        cash expenditures in respect of Swap Agreements during such fiscal year; and

(I)          the amount of Taxes (including penalties and interest) paid in cash in such period and (without duplication) tax reserves set aside or payable with respect to such period to the extent they exceed the amount of Tax expense deducted in determining Consolidated Net Income for such period.

“Exchange Rate” means, on any day, for purposes of determining the Dollar Equivalent or the Euro Equivalent of any other currency, the rate determined by the Administrative Agent, or Issuing Bank, as applicable, to be the rate quoted by the Administrative Agent, or Issuing Bank, as applicable, as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m., (x) in the case of Dollars, New York City time and (y) in the case of Alternative Currencies, London time.  In the event that such rate is not available, the Exchange Rate shall be determined by

reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent, or Issuing Bank, as applicable, and the U.S. Borrower or, in the absence of such agreement, the Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent, or Issuing Bank, as applicable,  in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 11:00 a.m., (x) in the case of Dollars, New York City time and (y) in the case of Alternative Currencies, London time, on such date for the purchase of Dollars or Euros, as the case may be, for delivery on such date, in the case where such other currency is Sterling, or two Business Days later, in the case of each other currency; provided that if at the time of any such determination, for any reason, no such spot rate is being reasonably quoted, the Administrative Agent, or Issuing Bank, as applicable, after consultation with the U.S. Borrower, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.

“Excluded Property” has the meaning assigned to such term in the Security Agreement.

“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 5.15 of the Guarantee Agreement and any other “keepwell, support or other agreement” for the benefit of such Loan Party and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guarantee of such Loan Party, or a grant by such Loan Party of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition.

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, (a) any Taxes imposed on (or measured by) net income (however denominated), franchise or similar Taxes and branch profits Taxes, in each case (i) imposed on it by any jurisdiction as a result of such recipient being organized under the laws of or having its principal office located in or, in the case of any Lender, having its applicable lending office located in, such jurisdiction or (ii) that are Other Connection Taxes, (b) with respect to any Loan made by a Lender to the U.S. Borrower, any U.S. federal withholding Tax and with respect to any Loan made by a Lender to the Dutch Borrower, any Dutch withholding tax, in each case imposed with respect to any amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the applicable Commitment (or, to the extent such Lender did not fund an applicable Loan pursuant to a prior Commitment, on the date on which such Lender acquires its interest in such Loan); provided that this clause (i) shall not apply to a Lender that became a Lender pursuant to an assignment request by the U.S. Borrower under Section 2.18) or (ii) such Lender changes its lending office, except in each case to the extent that, such Lender (or its assignor, if any) was entitled, immediately prior to the designation of such new lending office (or assignment), to receive additional amounts with respect to such withholding Tax pursuant to Section 2.16, (c) any withholding Tax that is attributable to a Lender’s failure to comply with Section 2.16(e) and (d) any U.S. federal withholding Taxes imposed under FATCA.  For purposes of clause (b)(i) of this definition, a participation acquired pursuant to Section 2.17 shall be

treated as having been acquired on the earlier date(s) on which the applicable Lender acquired the applicable interest in the Commitments or Loans to which such participation relates.

“Existing Term Loan Class” has the meaning assigned to such term in Section 2.20(a).

“Extended Revolving Commitments” means revolving credit commitments established pursuant to Section 2.20 that are substantially identical to the Revolving Commitments of any Class except that such Revolving Commitments may have a later maturity date and different provisions with respect to interest rates and fees (including any extension fees) than those applicable to the Revolving Commitments of such Class.

“Extended Term Loans” has the meaning assigned to such term in Section 2.20(a).

“Extending Term Lender” has the meaning assigned to such term in Section 2.20(c).

“Extension Election” has the meaning assigned to such term in Section 2.20(c).

“Extension Request” has the meaning assigned to such term in Section 2.20(a).

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above) and any intergovernmental agreements (and any related laws, regulations or official administrative practices) implementing the foregoing.

“Federal Funds Effective Rate” means, for any day, the rate calculated by the FRBNY based on such day’s federal funds transactions by depository institutions (as determined in such manner as the FRBNY shall set forth on its public website from time to time) and published on the next succeeding Business Day by the FRBNY as the federal funds effective rate; provided that if such rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the applicable Person.

“Financials” means the financial statements of Holdings required to be delivered pursuant to Section 5.01(a) or (b).

“First Incremental Agreement” means that certain First Incremental Agreement, dated as of January 3, 2017, among the Administrative Agent, the U.S. Borrower, the other Loan Parties party thereto and the initial lenders party thereto.

“First Incremental Term Lender” means the Incremental Term Loans (as defined in the First Incremental Agreement).

“First Incremental Term Loans” means the Incremental Term Loans (as defined in the First Incremental Agreement).

“First Lien Intercreditor Agreement” means an intercreditor agreement, substantially in the form of Exhibit J (with such changes thereto as are reasonably acceptable to the Administrative Agent and the U.S. Borrower), by and between the Administrative Agent and the collateral agent for one or more classes of Incremental Equivalent Indebtedness or Term Loan Refinancing Debt that are intended to be secured by Liens ranking pari passu with the Liens securing the Obligations.

“Foreign Holding Company” means any Domestic Subsidiary that has no material assets other than Equity Interests issued by CFCs.

 

“Foreign Lender” means any Lender or Issuing Bank that is not a United States person within the meaning of Section 7701(a)(30) of the Code.

“Foreign Plan” means any pension plan, benefit plan, fund (including any superannuation fund) or other similar program established, maintained or contributed to by a Borrower or any Subsidiary for the benefit of employees of a Borrower or any Subsidiary employed and residing outside the United States (other than any plans, funds or other similar programs that are maintained exclusively by a Governmental Authority), which plan, fund or other similar program provides, or results in, retirement income or a deferral of income in contemplation of retirement, and which plan is not subject to ERISA.

“Foreign Plan Event” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable Law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make, the required contributions or payments, under any applicable Law, on or before the due date for such contributions or payments (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (d) the incurrence of any liability by a Borrower or any Subsidiary under applicable Law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein or (e) the occurrence of any transaction that is prohibited under any applicable Law and that could reasonably be expected to result in the incurrence of any liability by a Borrower or any Subsidiary, or the imposition on a Borrower or any Subsidiary of, any fine, excise tax or penalty resulting from any noncompliance with any applicable Law.

“Foreign Subsidiary” means any direct or indirect Subsidiary of the U.S. Borrower that is not a Domestic Subsidiary.

“Form 10” means the registration statement on Form 10, originally filed by Holdings with the SEC on June 30, 2016, as amended or supplemented.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“FRBNY” means the Federal Reserve Bank of New York.

“FRBNY Rate” means, 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 banking day, for the immediately preceding banking day); provided that if none of such rates are published for any day that is a Business Day, the term “FRBNY Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by 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

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

“GAAP” means generally accepted accounting principles in the United States of America.

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

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including

any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation; provided that the term Guarantee shall not include (x) endorsements for collection or deposit in the ordinary course of business or (y) performance guarantees in the ordinary course of business.  The amount of any Guarantee of any guaranteeing person shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation, or portion thereof, in respect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation or the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the U.S. Borrower in good faith.

“Guarantee Agreement” means the Guarantee Agreement executed by the Loan Parties and the Administrative Agent, substantially in the form of Exhibit H, together with each guarantee agreement supplement executed and delivered pursuant to Section 5.09.

“Guarantor” means (a) Holdings, (b) Conduent Finance and (c) each Subsidiary Guarantor.

“Hazardous Materials” means petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas and all other substances, materials or wastes of any nature that in relevant form and concentration are regulated pursuant to any Environmental Law.

“Hedge Bank” means any Person that is the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender at the time it enters into a Secured Hedge Agreement (or on the Closing Date, the Initial Term A Funding Date or the Delayed Draw Funding Date, in the case of Secured Hedge Agreements existing on such date), in its capacity as a party thereto.

“Holdings” means Conduent Incorporated, a New York corporation.

“Holdings Pledge Agreement” means the Pledge Agreement executed by Holdings and the Administrative Agent, substantially in the form of Exhibit D-2.

“Immaterial Subsidiary” means any Restricted Subsidiary of the U.S. Borrower that on a consolidated basis with its Subsidiaries did not have consolidated revenues in excess of 5.0% of the U.S. Borrower’s consolidated revenues for the most recently ended four fiscal quarter period of the U.S. Borrower for which Financials have been delivered and did not have consolidated total assets in excess of 5.0% of Consolidated Total Assets as of the most recently ended fiscal quarter of the U.S. Borrower for which Financials have been delivered on or prior to the Closing Date or pursuant to Section 5.01(a) or (b); provided that (i) all such Subsidiaries designated as “Immaterial Subsidiaries” taken together shall not have revenues for any fiscal year of the U.S. Borrower or total assets as of the last day of any fiscal year in an amount that is equal to or greater than 7.5% of the consolidated revenues or total assetsConsolidated Total Assets, as applicable, of the U.S. Borrower and its Restricted Subsidiaries for, or as of the last day of, such fiscal year, as the case may be, and (ii) to the extent such limitation would be exceeded, the U.S. Borrower shall designate Restricted Subsidiaries to the Administrative Agent to no longer be designated as Immaterial Subsidiaries so that such limitation would not be exceeded.

“Impacted Interest Period” has the meaning assigned to such term in the definition of “Eurocurrency Rate.”

“Increased Commitments” has the meaning assigned to such term in Section 2.19(a).

“Increasing Lender” has the meaning assigned to such term in Section 2.19(a).

 

“Incremental Equivalent Indebtedness” means Indebtedness consisting of (a) loans that are unsecured or secured by Liens ranking junior to the Liens securing the Obligations or (b) debt securities that are unsecured or secured by Liens ranking pari passu or junior to the Liens securing the Obligations, in each case issued or Guaranteed by the Loan Parties (or any of them) that is designated by the U.S. Borrower in a certificate of a Responsible Officer delivered to the Administrative Agent as “Incremental Equivalent Indebtedness” on or prior to the date of incurrence; provided that (i) such Indebtedness does not have a final maturity that is prior to the Latest Maturity Date or a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans, (ii) such Indebtedness is not secured by a Lien on any assets of the U.S. Borrower or any of its Restricted Subsidiaries except for Liens on the Collateral permitted by Section 6.02(s), (iii) such Indebtedness is not incurred or Guaranteed by any Restricted Subsidiaries that are not Loan Parties, (iv) on the date of incurrence of such Indebtedness the U.S. Borrower shall be in compliance, calculated on a Pro Forma Basis, with the covenant contained in Section 6.09 as of the last day of the most recent fiscal quarter of the U.S. Borrower for which Financials have been delivered prior to such time, (v) the aggregate principal amount of Incremental Equivalent Indebtedness incurred following the Closing Date, when aggregated with the aggregate amount of all Increased Commitments (other than Refinancing Revolving Commitments) and Incremental Term Loans (other than Refinancing Term Loans) established following the Closing Date shall not exceed (i) $300,000,000 plus (ii) an additional amount that would not cause the Senior Secured Net Leverage Ratio on a Pro Forma Basis (for the avoidance of doubt, after giving effect to such Incremental Equivalent Indebtedness) as of the last day of the most recently ended fiscal quarter for which Financials were required to have been delivered pursuant to Section 5.01(a) or (b) to exceed 2.25 to 1.00 (determined without giving effect to any amount incurred substantially concurrently under subclause (i)) and (vi) the other terms and conditions relating to such debt securities or loans (other than interest rates, rate floors, call protection, discounts, fees, premiums and optional prepayment or redemption provisions) are not in the aggregate materially more restrictive than the terms of this Agreement as determined in good faith by the U.S. Borrower (except for provisions applicable only to periods after the Latest Maturity Date).

“Incremental Term Loan” has the meaning assigned to such term in Section 2.19(a).

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable incurred in the ordinary course of business, milestone payments incurred in connection with any investment or series of related investments, any earn-out obligation except to the extent such obligation is a liability on the balance sheet of such Person in accordance with GAAP at the time initially incurred and deferred or equity compensation arrangements payable to directors, officers or employees), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on Property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, but limited to the fair market value of such Property (except to the extent otherwise provided in this definition), (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (j) all obligations of such Person under any Swap Agreement (with the “principal” amount of any Swap Agreement on any date being equal to the early termination value thereof on such date).  The Indebtedness of any Person shall (i) include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is expressly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity and pursuant to contractual arrangements, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor, and (ii) exclude (A) customer deposits and advances and interest payable thereon in the ordinary course of business in accordance with customary trade terms

and other obligations incurred in the ordinary course of business through credit on an open account basis customarily extended to such Person, (B) obligations under customary overdraft arrangements with banks outside the United States incurred in the ordinary course of business to cover working capital needs (including cash pooling arrangements) and (C) bona fide indemnification, purchase price adjustment, earn-outs, holdback and contingency payment obligations to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing. For the avoidance of doubt, Indebtedness shall not include performance guarantees in the ordinary course of business or Xerox Guarantee Obligations.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitee” has the meaning assigned to such term in Section 9.03(b).

“Information” has the meaning assigned to such term in Section 9.12.

“Initial Term A Funding Date” means the date on which the conditions specified in Section 4.02 of this Agreement are satisfied (or waived in accordance with Section 9.02 of this Agreement).

“Initial Term A Lender” means a Lender with an Initial Term A Loan Commitment or an outstanding Initial Term A Loan.

“Initial Term A Loan” means a Loan made pursuant to Section 2.01(a).

“Initial Term A Loan Commitment” means with respect to each Lender, the commitment, if any, of such Lender to make an Initial Term A Loan pursuant to Section 2.01(a), as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Initial Term A Loan Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed an Initial Term A Loan Commitment, as applicable.  The initial aggregate amount of the Lenders’ Initial Term A Loan Commitments iswas the Euro Equivalent of $278,324,800.”Initial Term A Loan Maturity Date” means December 7, 2021; provided that if the Special Mandatory Prepayment Trigger Date occurs, the Initial Term A Loan Maturity Date shall instead be the Special Mandatory Prepayment Date.278,324,800 on the Closing Date.

“Information Memorandum” means the Confidential Information Memorandum dated November 7, 2016 relating to the Borrowers and the Transactions.

“Intercompany Transfers” has the meaning assigned to such term in the definition of the “Transactions.”

“Interest Election Request” means a request by a Borrower to convert or continue a Borrowing in accordance with Section 2.03.

“Interest Payment Date” means (a) with respect to any Base Rate Loan (other than a Swingline Loan), the last day of each March, June, September and December, (b) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid.

 

“Interest Period” means with respect to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months, or if available to all applicable Lenders, twelve months or a period less than one month thereafter, as the applicable Borrower may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

“Interpolated Rate” means,  at any time, for any Interest Period, with respect to (a) any Loan in any LIBOR Quoted Currency, the rate per annum (rounded to the same number of decimal places as the LIBO 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 (i) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available for the applicable currency) that is shorter than the Impacted Interest Period and (ii) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available for the applicable currency) that exceeds the Impacted Interest Period, in each case, at such time, and (b) any Loan in any Non-Quoted Currency, the rate per annum (rounded to the same number of decimal places as the Local 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 (i) the Local Screen Rate for the longest period (for which the Local Screen Rate is available for the applicable currency) that is shorter than the Impacted Interest Period and (ii) the Local Screen Rate for the shortest period (for which the Local Screen Rate is available for the applicable currency) that exceeds the Impacted Interest Period, in each case, at such time.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person or (b) a loan, advance or capital contribution to, Guarantee of Indebtedness of, assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person.  For purposes of Section 6.05, (i) the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, and (ii) in the event the U.S. Borrower or any Restricted Subsidiary (an “Initial Investing Person”) transfers an amount of cash or other Property (the “Invested Amount”) for purposes of permitting the U.S. Borrower or one or more Restricted Subsidiaries to ultimately make an Investment of the Invested Amount in the U.S. Borrower, any Restricted Subsidiary or any other Person (the Person in which such Investment is ultimately made, the “Subject Person”) through a series of substantially concurrent intermediate transfers of the Invested Amount to the U.S. Borrower or one or more Restricted Subsidiaries other than the Subject Person (each an “Intermediate Investing Person”), including through the incurrence or repayment of intercompany Indebtedness, capital contributions or redemptions of Equity Interests, then, for all purposes of Section 6.05, any transfers of the Invested Amount to Intermediate Investing Persons in connection therewith shall be disregarded and such transaction, taken as a whole, shall be deemed to have been solely an Investment of the Invested Amount by the Initial Investing Person in the Subject Person and not an Investment in any Intermediate Investing Person.

“IP Rights” has the meaning assigned to such term in Section 3.05(b).

“ISP” means, with respect to any standby Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance of such Letter of Credit).

 

“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable Issuing Bank and the applicable Borrower (or any Restricted Subsidiary) or in favor of such Issuing Bank and relating to such Letter of Credit.

“Issuing Bank” means JPMorgan Chase Bank, N.A., Bank of America, N.A., BNP Paribas, Credit Suisse AG, Cayman Islands Branch, Goldman Sachs Bank USA, Mizuho Bank Ltd. , Royal Bank of Canada and any other Lender (subject to such Lender’s consent) designated by the U.S. Borrower and consented to by the Administrative Agent (such consent not to be unreasonably withheld or delayed) that becomes an Issuing Bank, in each case in its capacity as an issuer of Letters of Credit hereunder, and any successors in such capacity as provided in Section 9.04.  An Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

“Issuing Bank LC Exposure Sublimit” means, for each Issuing Bank, the amount of the LC Exposure Sublimit set forth with respect to such Issuing Bank on Schedule 2.01.II to Amendment No. 3.

“Junior Financing” means any Indebtedness that is contractually subordinated in right of payment to any of the Obligations (it being understood and agreed, for the avoidance of doubt, that the Senior Notes do not constitute a Junior Financing).

“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, in each case as extended in accordance with this Agreement from time to time.

“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities.

“L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage thereof.  All L/C Advances shall be denominated in Dollars.

“L/C Borrowing” means an extension of credit resulting from a LC Disbursement under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Base Rate Revolving Borrowing.  All L/C Borrowings shall be denominated in Dollars.

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.

“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements, including Unreimbursed Amounts, that have not yet been reimbursed by or on behalf of the applicable Borrower at such time.  The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure of the Revolving Lenders at such time.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” and not to have expired or terminated in the amount so remaining available to be drawn.

“LC Exposure Sublimit” means $300,000,000.

“LC Participation Calculation Date” means, with respect to any LC Disbursement made by an Issuing Bank or any refund of a reimbursement payment made by an Issuing Bank to a Borrower, in each case in a currency other than Dollars, (a) the date on which such Issuing Bank shall advise the Administrative Agent that it purchased with

Dollars the currency used to make such LC Disbursement or refund or (b) if such Issuing Bank shall not advise the Administrative Agent that it made such a purchase, the date on which such LC Disbursement or refund is made.

“LCT Election” has the meaning assigned to such term in Section 1.06(a).

“LCT Test Date” has the meaning assigned to such term in Section 1.06(a).

“Lender Participation Notice” has the meaning assigned to such term in Section 2.10(c)(iii).

“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a Lender hereunder pursuant to Section 2.19 or pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender and the Issuing Banks.

“Letter of Credit” means a Letter of Credit issued pursuant to Section 2.05(a)(i)(x); provided that Goldman SachsRoyal Bank USAof Canada and Credit Suisse AG, Cayman Islands Branch will not be obligated to issue (or cause to be issued) commercial letters of credit (as opposed to a standby letters of credit).

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable Issuing Bank.

“Letter of Credit Expiration Date” means the day that is five Business Days prior to the Revolving Credit Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

“LIBO Screen Rate” means the London interbank offered rate administered by the ICE Benchmark Association (or any other Person that takes over the administration of such rate) for the applicable LIBOR Quoted Currency for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen or, in the event such rate does not appear on either of such Reuters pages, 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 be selected by the Administrative Agent from time to time in its reasonable discretion.

“LIBOR Quoted Currency” means Dollars, Euros and Sterling.

“Lien” means, with respect to any asset, any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset (or any capital lease having substantially the same economic effect as any of the foregoing).

“Limited Condition Transaction” has the meaning assigned to such term in Section 1.06(a).

“Loan Documents” means this Agreement, the Guarantee Agreement, the Collateral Documents, each Additional Credit Extension Amendment, any promissory notes executed and delivered pursuant to Section 2.09(h), the Agency Fee Letter and any amendments, waivers, supplements or other modifications to any of the foregoing.

“Loan Parties” means the Borrowers and the Guarantors.

“Loans” means the loans made by the Lenders to the Borrowers pursuant to this Agreement.

“Local Screen Rates” means the CDOR Screen Rate; provided that, if any Local Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, property or financial condition of the U.S. Borrower and the Restricted Subsidiaries taken as a whole or (b) the ability of the Loan Parties to perform their obligations under this Agreement or any and all other Loan Documents, or the rights and remedies of the Administrative Agent and the Lenders thereunder.

 

“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), of any one or more of the U.S. Borrower and its Restricted Subsidiaries in an aggregate principal amount exceeding $50,000,000.

“Maximum Rate” has the meaning assigned to such term in Section 9.14.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA that is subject to ERISA, and in respect of which the U.S. Borrower or any of its ERISA Affiliates is (or during the preceding five plan years has been) an “employer” as defined in Section 3(5) of ERISA.

“Net Cash Proceeds” means (a) with respect to any Asset Sale or any Casualty Event, an amount equal to (i) the sum of cash and Cash Equivalents received in connection with such Asset Sale or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note or installment receivable, purchase price adjustment or earn-out or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by the U.S. Borrower or any Restricted Subsidiary) less (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by the Property or otherwise subject to mandatory prepayment in connection with such Asset Sale or Casualty Event and that is repaid in connection with such Asset Sale or Casualty Event (other than Indebtedness under the Loan Documents and Indebtedness secured by Liens permitted by Section 6.02(s)), (B) the out-of-pocket expenses (including attorneys’ fees, investment banking fees, accounting fees and other professional and transactional fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other expenses and brokerage, consultant and other commissions and fees) actually incurred by the U.S. Borrower or such Restricted Subsidiary in connection with such Asset Sale or Casualty Event, (C) taxes paid or reasonably estimated to be actually payable in connection therewith, (D) any reserve for adjustment in accordance with GAAP in respect of (x) the sale price of such Property and (y) any liabilities associated with such Property and retained by the U.S. Borrower or any Restricted Subsidiary after such Disposition, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction and (E) the Borrowers’ reasonable estimate of payments required to be made with respect to unassumed liabilities relating to the Property involved within one year of such Asset Sale or Casualty Event; provided that “Net Cash Proceeds” shall include any cash or Cash Equivalents received upon the Disposition of any non-cash consideration received within 180 days of such Asset Sale by the U.S. Borrower or any Restricted Subsidiary in any such Asset Sale (but only as and when so received); and (b) with respect to the incurrence or issuance of any Indebtedness by the U.S. Borrower or any Restricted Subsidiary, an amount equal to (i) the sum of the cash received in connection with such incurrence or issuance less (ii) the attorneys’ fees, investment banking fees, accountants’ fees, underwriting or other discounts, upfront fees, commissions, costs and other fees, transfer and similar taxes and other out-of-pocket expenses actually incurred by the U.S. Borrower or such Restricted Subsidiary in connection with such incurrence or issuance.

“New Lender” has the meaning assigned to such term in Section 2.19(a).

“Non-Extension Notice Date” has the meaning assigned to such term in Section 2.05(b)(iii).

“Non-Quoted Currency” means Canadian Dollars.

“Note” means a promissory note made by the applicable Borrower in favor of a Lender evidencing Loans made by such Lender to such Borrower, substantially in the form of Exhibit B-1, Exhibit B-2, Exhibit B-3 or Exhibit C, as applicable.

 

“Obligations” means all indebtedness (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), other monetary obligations, liabilities, covenants and duties of any of the Loan Parties to any of the Secured Parties and their respective Affiliates, individually or collectively, existing on the Closing Date or arising thereafter (direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured) arising or incurred under this Agreement or any of the other Loan Documents or any Secured Hedge Agreement or Cash Management Obligation (including under any of the Loans made or reimbursement or other monetary obligations incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof) or under Bilateral Letter of Credit Facilities, in each case whether now existing or hereafter arising, whether all such obligations arise or accrue before or after the commencement of any bankruptcy, insolvency or receivership proceedings (and whether or not such claims, interest, costs, expenses or fees are allowed or allowable in any such proceeding); provided that the “Obligations” with respect to any Loan Party shall exclude any Excluded Swap Obligations of such Loan Party.

“Offered Loans” has the meaning assigned to such term in Section 2.10(c)(iii).

“Original Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans as set forth in this Agreement immediately prior to the Amendment No. 3 Effective Date.

“Other Connection Taxes” means, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely as a result of such recipient having executed, delivered, become a party to, performed its obligations under, received payment under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned any interest in any Loan or Loan Document.  For the avoidance of doubt, in the case of any Loan made to the Dutch Borrower, Other Connection Taxes include any Taxes imposed on a recipient under the laws of the Netherlands, if and to the extent such Tax becomes payable as a result of such recipient having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act (Wet inkomstenbelasting 2001) in the Dutch Borrower.

“Other Taxes” means all present or future stamp, court, documentary, recording, filing or similar Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery, performance, registration or enforcement of, or from the receipt or perfection of a security interest under or otherwise with respect to, this Agreement or any other Loan Document.

“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurocurrency borrowings by U.S.–managed banking offices of depository institutions (as such composite rate shall be determined by the FRBNY as set forth on its public website from time to time) and published on the next succeeding Business Day by the FRBNY as an overnight bank funding rate (from and after such date as the FRBNY shall commence to publish such composite rate).

“Participant” has the meaning assigned to such term in Section 9.04(d).

“Participant Register” has the meaning assigned to such term in Section 9.04(d).

“Participating Member State” means any member state of the EMU which has the Euro as its lawful currency.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Perfection Certificate” means a certificate substantially in the form of Exhibit 6 to the Security Agreement or any other form approved by the Administrative Agent.

 

“Perfection Certificate Supplement” means a supplement to the Perfection Certificate containing any information not included in the Perfection Certificate delivered to the Administrative Agent on the Closing Date (or in any previously delivered Perfection Certificate Supplement) with respect to matters required by Sections 1(a), (2), (6), (7), (8), (9) of the Perfection Certificate and, solely to the extent relating to updates to Section 1(a) of the Perfection Certificate, Sections (3), (4) and (5) of the Perfection Certificate.

“Permitted Acquisition” means the purchase or other acquisition, in one or more series of transactions, of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will be a Restricted Subsidiary of the U.S. Borrower (including as a result of a merger or consolidation); provided that the following conditions are satisfied to the extent applicable:

(a)         to the extent required by Section 5.09, each applicable Loan Party and any such newly created or acquired Specified Domestic Subsidiary shall have complied with the requirements of Section 5.09, within the times specified therein;

(b)         the aggregate amount of Investments (without duplication for any Investment made through a series of Investments) made by a Loan Party in Persons that are not Loan Parties prior to any such Investment, and do not become Loan Parties as a result of any such Investment, together with the amount of Investments made in non-Loan Parties pursuant to Section 6.05(c)(iv), does not exceed (x) the greater of (A) $115,000,000 and (B) 16% of Consolidated EBITDA determined on a Pro Forma Basis for the most recently ended four fiscal quarter period ending immediately prior to the date on which such Investment is made and for which Financials have been delivered, plus (y) the Available Amount, plus (z) the amount of Investments permitted by Section 6.05(r); provided that (i) in the case of a purchase or other acquisition that is comprised of the purchase or acquisition of Persons with at least 90% of domestic “EBITDA” in the aggregate, the portion of the aggregate amount of cash or Property provided by Loan Parties to make any such purchase or acquisition that is attributable to foreign “EBITDA” shall also be permitted without the use of the amounts available pursuant to this clause (b) or Section 6.05(c)(iv), (ii) in the case of Investments permitted under this clause (b) that are comprised of the purchase or acquisition of Persons with less than 90% of domestic “EBITDA” in the aggregate, only the portion of the aggregate amount of cash or Property provided by Loan Parties to make any such purchase or acquisition that is attributable to foreign “EBITDA” that is in excess of 10% shall be required to use the amounts available pursuant to this clause (b) or Section 6.05(c)(iv) and (iii) this clause (b) shall not apply to the extent the consideration for the relevant purchase or acquisition consists of Equity Interests of Holdings;

(c)         the acquired Property, business or Person is in a business permitted under Section 6.12; and

(d)         at the time of and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing.

“Permitted Asset Swap” means the substantially concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the U.S. Borrower or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 2.10(b).

“Permitted Encumbrances” means:

(a)         Liens imposed by law for taxes, assessments or other governmental charges that are not yet delinquent or are being contested in compliance with Section 5.04;

(b)         carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’, workmen’s, suppliers’ and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are either (i) not overdue by more than 60 days or (ii) being contested in good

faith by appropriate proceedings and reserves with respect thereto have been set aside to the extent required by GAAP;

(c)         (i) Liens, pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations or to secure other public, statutory or regulatory obligations (including to support letters of credit or bank guarantees), (ii) Liens, pledges or deposits in the ordinary course of business securing liability for premiums or reimbursement or indemnification obligations of (including obligations in respect of letters of credit, bank guarantees or surety bonds for the benefit of) insurance carriers providing insurance to a Borrower or any Restricted Subsidiary, (iii) Liens in connection with surety bonds entered into in the ordinary course of business and  (iv) Liens on the escrow account established as of the Spin-Off Date (and the amounts on deposit therein as of the Spin-Off Date) in respect of Xerox Guarantee Obligations;

(d)         Liens (other than any lien imposed under ERISA or Section 430(k) of the Code) or deposits to secure the performance of bids, trade contracts, governmental contracts, tenders, statutory bonds, leases, statutory obligations, surety, stay, customs, appeal and replevin bonds, performance bonds or in favor of franchisors or other regulatory bodies and other obligations of a like nature (including those to secure health, safety and environmental obligations), in each case in the ordinary course of business;

(e)         Liens in respect of judgments, decrees, attachments or awards that do not constitute an Event of Default under clause (k) of Article VII;

(f)         easements, restrictions (including zoning restrictions), rights-of-way, covenants, licenses, encroachments, protrusions and similar encumbrances and minor title defects affecting real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially interfere with the ordinary conduct of business of the U.S. Borrower or any Restricted Subsidiary; and

(g)         any interest or title of a lessor, sublessor, licensor or sublicensor under any lease, sublease, license or sublicense entered into by the U.S. Borrower or any Restricted Subsidiary as a part of its business and covering only the assets so leased or licensed;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

“Permitted Refinancing Indebtedness” means, with respect to any Indebtedness of a Person, any amendment, modification, refinancing, refunding, renewal, replacement or extension of such 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, replaced 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, replacement or extension, (b) other than with respect to Permitted Refinancing Indebtedness in respect of Indebtedness permitted pursuant to Section 6.01(e), such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the earlier of (x) the final maturity date of the Indebtedness so modified, refinanced, refunded, renewed, replaced or extended and (y) the date which is 91 days after the Latest Maturity Date, (c) other than with respect to Permitted Refinancing Indebtedness in respect of Indebtedness permitted pursuant to Section 6.01(e), such modification, refinancing, refunding, renewal, replacement or extension has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, (d) to the extent such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms, taken as a whole, at least as favorable to the Lenders (in the good faith determination of the U.S. Borrower) as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended and (e) if any Liens securing the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended is secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Obligations, the Liens securing such Indebtedness shall be secured by the Collateral on a second priority (or other junior priority) basis to

the Liens securing the Obligations on terms that are at least as favorable to the Secured Parties (in the good faith determination of the U.S. Borrower) as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended, taken as a whole.

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

“Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) other than a Multiemployer Plan, subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the U.S. Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Planned Expenditures” has the meaning assigned to such term in the definition of “Excess Cash Flow.”

“Platform” has the meaning assigned to such term in Section 9.01(c).

“Post-Acquisition Period” means, with respect to any Permitted Acquisition, the period beginning on the date such Permitted Acquisition is consummated and ending on the one-year anniversary of the date on which such Permitted Acquisition is consummated.

“Preferred Equity Interests” has the meaning assigned to such term in the definition of the “Transactions.”

“Preferred Stock” as applied to the Equity Interests of any Person, means Equity Interests of any class or classes (however designated) which are preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Equity Interests of any other class of such Person.

“Prime Rate” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its office located in New York, New York; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

“Pro Forma Adjustment” means, for any applicable period of measurement that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, with respect to the Consolidated EBITDA of the applicable Acquired Entity or Business or the Consolidated EBITDA of the U.S. Borrower, the pro forma increase or decrease in such Consolidated EBITDA, projected by the U.S. Borrower in good faith as a result of (a) actions that have been taken or are expected to be taken during such Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period, in each case in connection with the combination of the operations of such Acquired Entity or Business with the operations of the U.S. Borrower and its Subsidiaries, calculated assuming that such actions had been taken on, or such costs had been incurred since, the first day of such period; provided that (i) any such pro forma increase or decrease to such Consolidated EBITDA shall be without duplication for cost savings or additional costs already included in such Consolidated EBITDA for such period of measurement and (ii) any increase to Consolidated EBITDA pursuant to this definition of “Pro Forma Basis” shall be subject to the limitations set forth in the proviso of clause (vii) of the definition of “Consolidated EBITDA.”

“Pro Forma Basis” means, with respect to compliance with any test or covenant hereunder, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant: (a) income statement items (whether positive or negative) attributable to the Property or Person subject to such Specified Transaction, (i) in the case of a Disposition of all or substantially all Equity Interests in any Restricted Subsidiary of the U.S. Borrower owned by the U.S. Borrower or any of its Restricted Subsidiaries or any division, product line or facility used for operations of the U.S. Borrower or

any of its Restricted Subsidiaries or any designation of a Restricted Subsidiary as an Unrestricted Subsidiary, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” or designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall be included, (b) any repayment, redemption or retirement of Indebtedness and (c) any Indebtedness incurred, assumed or guaranteed by the U.S. Borrower or any of its Restricted Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that, without limiting the application of the Pro Forma Adjustment pursuant to clause (A) above (but without duplication thereof), the foregoing pro forma adjustments may be applied to any such test or covenant solely to the extent that such adjustments are (x) consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are in the good faith determination of the U.S. Borrower (I) reasonably identifiable and factually supportable (provided that (i) any increase to Consolidated EBITDA pursuant to this definition of “Pro Forma Basis” shall be subject to the limitations set forth in the proviso of clause (vii) of the definition of “Consolidated EBITDA” and (ii) any such pro forma increase or decrease to such Consolidated EBITDA shall be without duplication for cost savings or additional costs already included in such Consolidated EBITDA for such period of measurement) and (II) expected to have a continuing impact on the consolidated financial results of the U.S. Borrower or (y) otherwise consistent with the definition of “Pro Forma Adjustment.”

“Pro Forma Financial Statements” shall have the meaning assigned to such term in Section 4.01(i).

“Professional Lender” shall mean (i) until the publication of an interpretation of “public” as referred to in the CRR by the competent authorities, an entity which (A) assumes rights and/or obligations vis-à-vis the Dutch Borrower, the value of which is at least EUR 100,000 (or its equivalent in another currency), (B) provides repayable funds for an initial amount of at least EUR 100,000 (or its equivalent in another currency) or (C) otherwise qualifies as not forming part of the public and (ii) as soon as the interpretation of the term “public” as referred to in the CRR has been published by the competent authorities, an entity which is not considered to form part of the public on the basis of such interpretation.

“Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Equity Interests.

“Proposed Discounted Prepayment Amount” has the meaning assigned to such term in Section 2.10(c)(ii).

“Public Company Expenses” means expenses incurred in connection with (a) the Spin-Off, (b) compliance with applicable law and regulations, including requirements of the Sarbanes-Oxley Act of 2002, the Securities Act of 1933 and the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, as applicable to companies with equity or debt securities held by the public, or the rules of national securities exchanges applicable to companies with listed equity or debt securities, (c) expenses incurred by Holdings in connection with any public offering or other sale of Equity Interests or Indebtedness (i) where the net proceeds of such offering or sale are intended to be received by or contributed to the U.S. Borrower or a Restricted Subsidiary, (ii) in a pro rated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or (iii) otherwise on an interim basis prior to completion of such offering so long as Holdings shall cause the amount of such expenses to be repaid to the U.S. Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed and (d) any other expenses attributable to the status of Holdings as a public company, including expenses relating to investor relations and other general corporate overhead, shareholder meetings and reports to shareholders, directors’ fees, directors’ and officers’ insurance and other executive costs, indemnification obligations to directors and officers, legal, audit and other professional fees and listing and filing fees.

“Public Lender” has the meaning assigned to such term in Section 9.01(c).

 

“Qualified Equity Interests” means Equity Interests of Holdings or the U.S. Borrower, as the context requires, in each case other than Disqualified Equity Interests.

“Qualifying Lenders” has the meaning assigned to such term in Section 2.10(c)(iv).

“Qualifying Loans” has the meaning assigned to such term in Section 2.10(c)(iv).

“Quarterly Financial Statements” shall have the meaning assigned to such term in Section 4.01(i).

“Quotation Day” means, with respect to any Eurocurrency Borrowing for any Interest Period, (i) if the currency is Sterling or Canadian Dollars, the first day of such Interest Period, (ii) if the currency is Euro, two TARGET2 Days before the first day of such Interest Period, (iii) for any other currency, two Business Days prior to the commencement of such Interest Period (unless, in each case, market practice differs in the relevant market where the Eurocurrency 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)).

“Reference Time” has the meaning assigned to such term in the definition of “Available Amount.”

“Refinanced Term Loans” has the meaning assigned to such term in Section 9.02.

“Refinancing Indebtedness” means (i) any Refinancing Term Loans and (ii) any Term Loan Refinancing Debt.

“Refinancing Revolving Commitments” means Increased Commitments that are designated by the U.S. Borrower in a certificate of a Responsible Officer delivered to the Administrative Agent on or prior to the date of issuance as “Refinancing Revolving Commitments.”

“Refinancing Term Loans” means Incremental Term Loans that are designated by the U.S. Borrower as “Refinancing Term Loans” in a certificate of a Responsible Officer of the U.S. Borrower delivered to the Administrative Agent on or prior to the date of incurrence.

“Register” has the meaning assigned to such term in Section 9.04(c).

“Regulation S‑X” means Regulation S‑X under the Securities Act of 1933, as amended.

“Rejection Notice” has the meaning assigned to such term in Section 2.10(b)(v).

“Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in any business permitted by Section 6.12; provided that any assets received by the U.S. Borrower or a Restricted Subsidiary in exchange for assets transferred by the U.S. Borrower or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would be or become a Restricted Subsidiary.

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

“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the Environment.

“Removal Effective Date” has the meaning assigned to such term in paragraph (g) of Article VIII.

“Replacement Term Loans” has the meaning assigned to such term in Section 9.02.