(a)                                   Section 1.01 of the Credit Agreement is hereby amended:

 

(i)                                      by deleting the definitions of “ Consolidated Senior Leverage Ratio ”, “ Incremental Term A/B Loan Commitments ” and “ Incremental Term A/B Loans ”;

 

(ii)                                   by adding the following new definitions to appear in proper alphabetical order:

 

“ Auction Amount ” shall have the meaning provided in Exhibit P hereto.

 

“ Auction Manager ” shall mean DBSI (or such other financial institution as shall be selected by the Borrower in a written notice to the Administrative Agent) in its capacity as Auction Manager.

 

“ Auction Procedures ” shall mean, collectively, the auction procedures, auction notice, return bid and Borrower Assignment Agreement in substantially the form set forth as Exhibit P hereto; provided , however , the Auction Manager, with the prior written consent of the Borrower, may amend or modify the procedures, notices, bids and Borrower Assignment Agreement in connection with any Borrower Loan Purchase (but excluding economic terms of a particular auction after any Lender has validly tendered Term Loans requested in an offer relating to such auction, other than to increase the Auction Amount or raise the Discount Range applicable to such auction); provided , further , that no such amendments or modifications may be implemented after 24 hours prior to the date and time return bids are due in such auction.

 

“ Borrower Assignment Agreement ” shall mean, with respect to any assignment to Borrower pursuant to Section 13.05(d), an Assignment and Acceptance Agreement substantially in the form of Annex C to the Auction Procedures (as may be modified from time to time as set forth in the definition of Auction Procedures).

 

“ Borrower Assignment Effective Date ” shall have the meaning provided in Section 13.05(d).

 

“ Borrower Letter ” shall mean a Borrower Letter substantially in the form attached as Exhibit Q hereto.

 

“ Borrower Loan Purchase ” shall mean any purchase of Term Loans (other than Term A Facility Loans) by Borrower pursuant to Section 13.05(d).

 

“ Cash Collateralize ” shall mean, in respect of an obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance reasonably satisfactory to each of the Administrative Agent, the L/C Lender (in the case of obligations owing to the L/C Lender) and the Swingline Lender (in the case of obligations owing to the Swingline Lender) (and “ Cash Collateral ” and “ Cash Collateralization ” have corresponding meanings).

 

“ Consolidated Senior Secured Leverage Ratio ” shall mean, as of any date of determination, the ratio of (a) Consolidated Indebtedness as of such date, minus , without duplication, all unsecured Indebtedness of Borrower and its Restricted Subsidiaries as of such date, to (b) Consolidated EBITDA for the Test Period in respect of such date.  The calculation of Consolidated Senior Secured Leverage Ratio shall be subject to Section 10.08(e).

 

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“ Discount Range ” shall have the meaning provided in Exhibit P hereto.

 

“ Excluded Information ” shall have the meaning provided in Section 12.06.

 

“ Existing Revolving Loans ” shall have the meaning provided in Section 2.13(b).

 

“ Existing Revolving Tranche ” shall have the meaning provided in Section 2.13(b).

 

“ Existing Term Loan Tranche ” shall have the meaning provided in Section 2.13(a).

 

“ Existing Tranche ” shall mean any Existing Term Loan Tranche or Existing Revolving Tranche.

 

“ Extended Loans/Commitments ” shall mean Extended Term Loans and/or Extended Revolving Commitments.

 

“ Extended Revolving Commitments ” shall have the meaning provided in Section 2.13(b).

 

“ Extended Revolving Loans ” shall have the meaning provided in Section 2.13(b).

 

“ Extended Term Loans ” shall have the meaning provided in Section 2.13(a).

 

“ Extending Lender ” shall have the meaning provided in Section 2.13(c).

 

“ Extension Amendment ” shall have the meaning provided in Section 2.13(d).

 

“ Extension Date ” shall mean any date on which any Existing Term Loan Tranche or Existing Revolving Tranche is modified to extend the related scheduled maturity date(s) in accordance with Section 2.13 (with respect to Lenders under such Existing Term Loan Tranche or Existing Revolving Tranche which agree to such modification).

 

“ Extension Election ” shall have the meaning provided in Section 2.13(c).

 

“ Extension Request ” shall mean any Term Loan Extension Request or Revolving Extension Request.

 

“ Extension Series ” shall mean all Extended Term Loans or Extended Revolving Commitments that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended Revolving Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series).

 

“ Incremental Existing Tranche Revolving Commitments ” shall have the meaning set forth in Section 2.12(a).

 

“ Incremental Revolving Commitments ” shall mean the New Incremental Revolving Commitments and the Incremental Existing Tranche Revolving Commitments.

 

“ Incremental Tranche B Revolving Commitments ” shall have the meaning provided in the Second Amendment.

 

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“ Incremental Tranche B Revolving Lenders ” shall have the meaning provided in the Second Amendment.

 

“ Lender Insolvency Event ” shall mean that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action authorizing or indicating its consent to or acquiescence in any such proceeding or appointment; provided , however , that a Lender Insolvency Event shall not be deemed to exist solely as the result of the acquisition or maintenance of an ownership interest in such Lender or its Parent Company by a Governmental Authority or an instrumentality thereof.

 

“ New Incremental Revolving Commitment ” shall have the meaning set forth in Section 2.12(a).

 

“ New Incremental Revolving Loan ” shall have the meaning set forth in Section 2.12(a).

 

“ New Incremental Revolving Loan Facility ” shall mean each credit facility comprising a series or Tranche of New Incremental Revolving Commitments and any related New Incremental Revolving Loans.

 

“ New Incremental Revolving Loan Maturity Date ” shall mean, with respect to any New Incremental Revolving Commitments and any related New Incremental Revolving Loans, the maturity date thereof as determined in accordance with Section 2.12(c).

 

“ Parent Company ” shall mean, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

 

“ Revolving Extension Request ” shall have the meaning provided in Section 2.13(b).

 

“ Second Amendment ” shall mean the Second Amendment to this Agreement.

 

“ Second Amendment Effective Date ” shall mean the date of the satisfaction of the conditions referred to in Section 7 of the Second Amendment.

 

“ Term Loan Extension Request ” shall have the meaning provided in Section 2.13(a).

 

“ Total Tranche B Revolving Commitments ” shall mean, at any time, the Tranche B Revolving Commitments of all the Tranche B Revolving Lenders at such time.

 

“ Tranche A Letter of Credit ” shall mean a Letter of Credit with an expiration date on or before the fifth Business Day preceding the Tranche A R/C Maturity Date.

 

“ Tranche A R/C Maturity Date ” shall mean October 3, 2010.

 

“ Tranche A Revolving Commitment ” shall mean, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Tranche A Revolving Loans hereunder, as the same may be (a) changed pursuant to Section 13.05(b), (b) reduced or terminated

 

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from time to time pursuant to Sections 2.04 and/or 11.01, as applicable, or (c) increased or otherwise adjusted from time to time in accordance with this Agreement, including pursuant to Section 2.12.

 

“ Tranche A Revolving Lenders ” shall mean the Lenders from time to time holding Tranche A Revolving Loans and/or a Tranche A Revolving Commitment as in effect from time to time.

 

“ Tranche A Revolving Loans ” shall mean Revolving Loans made in respect of Tranche A Revolving Commitments.

 

“ Tranche B Letter of Credit ” shall mean a Letter of Credit with an expiration date after the fifth Business Day preceding the Tranche A R/C Maturity Date.

 

“ Tranche B R/C Maturity Date ” shall mean July 3, 2012.

 

“ Tranche B Revolving Commitment ” shall mean, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Tranche B Revolving Loans hereunder, as the same may be (a) changed pursuant to Section 13.05(b), (b) reduced or terminated from time to time pursuant to Sections 2.04 and/or 11.01, as applicable, or (c) increased or otherwise adjusted from time to time in accordance with this Agreement, including pursuant to Section 2.12.

 

“ Tranche B Revolving Lenders ” shall mean the Lenders from time to time holding Tranche B Revolving Loans and/or a Tranche B Revolving Commitment as in effect from time to time.

 

“ Tranche B Revolving Loans ” shall mean Revolving Loans made in respect of Tranche B Revolving Commitments.

 

“ Unaffiliated Joint Ventures ” shall mean any joint venture of Borrower or any of its Subsidiaries; provided , however , that (i) Borrower and its Subsidiaries shall not own, directly or indirectly, in excess of 60% of the Equity Interests of such joint venture, (ii) all Investments in, and other transactions entered into with, such joint venture by Borrower or any of its Restricted Subsidiaries were made in compliance with this Agreement and (iii) no Affiliate (other than Borrower or any Subsidiary) or officer or director of Borrower or any of its Subsidiaries owns any Equity Interest, or has any material economic interest, in such joint venture.

 

(iii)                                by restating the following definitions in their entirety as follows:

 

“ Agent ” shall mean any of Administrative Agent, Auction Manager, Collateral Agent, Lead Arrangers, Co-Syndication Agents and/or Co-Documentation Agents, as applicable.  All discretionary authority vested in Collateral Agent hereunder may be exercised in consultation with Lead Arrangers and/or counsel to Lead Arrangers and Administrative Agent.

 

“ Alternate Base Rate ” shall mean for any day, the greatest of (i) the corporate base rate of interest announced by Administrative Agent from time to time, changing effective on the date of announcement of said corporate base rate changes, (ii) the Federal Funds Rate plus 0.50% per annum and (iii) the LIBO Rate for an Interest Period of one-month beginning on such day (or if such day is not a Business Day, on the immediately preceding Business Day) plus 100 basis points; provided , however , that the Alternate Base Rate shall not equal the rate set forth in the

 

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foregoing clause (iii) for more than thirty (30) days in any 12-month period.  The corporate base rate is not necessarily the lowest rate charged by Administrative Agent to its customers.

 

“ Eligible Assignee ” shall mean and include (i) a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D) and (ii) solely for purposes of Borrower Loan Purchases, Borrower; provided , however , that, other than as set forth in clause (ii) of this definition, neither Borrower nor any of Borrower’s Affiliates or Subsidiaries shall be an Eligible Assignee.

 

“ Final Maturity Date ” shall mean the latest of the latest R/C Maturity Date, the Term A Facility Maturity Date, the Term B Facility Maturity Date, the latest New Incremental Term Loan Maturity Date and the latest final maturity date applicable to any Extended Term Loans.

 

“ Incremental Commitment Amount ” shall mean $700.0 million (as the same may be reduced or terminated from time to time pursuant to Section 2.04); provided , however , that in no event shall the aggregate amount of all Incremental Revolving Commitments provided pursuant to Section 2.12 exceed $200.0 million.  Notwithstanding the foregoing, the Incremental Commitment Amount (and, in the case of Incremental Revolving Commitments, the permitted amount of Incremental Revolving Commitments referred to in the preceding sentence) shall exclude, and not be reduced by, (i) the Incremental Tranche B Revolving Commitments extended on the Second Amendment Effective Date or (ii) the amount of Incremental Term Loan Commitments and Incremental Revolving Commitments that are used, concurrently with the extension of such Incremental Commitments, to repay then-outstanding Term Loans, in the case of Incremental Term Loan Commitments, or to repay, replace and terminate then-outstanding Revolving Commitments and Revolving Loans, in the case of Incremental Revolving Commitments and, in each case, to pay fees and expenses directly related to the extension of such Incremental Commitments.

 

“ Incremental Commitments ” shall mean the Incremental Revolving Commitments, the Incremental Term B Loan Commitments and the New Incremental Term Loan Commitments.

 

“ Incremental Term Loan Commitments ” shall mean the Incremental Term B Loan Commitments and the New Incremental Term Loan Commitments.

 

“ Incremental Term Loans ” shall mean the Incremental Term B Loans and the New Incremental Term Loans.

 

“ Lender Default ” shall mean, in respect of any Lender, (i) such Lender has failed, for more than one (1) Business Day, to comply with its obligations under this Agreement to make a Loan, make a payment to the L/C Lender in respect of an L/C Disbursement and/or make a payment to the Swingline Lender in respect of a Swingline Loan (each a “ funding obligation ”), (ii) such Lender has notified the Administrative Agent, or has stated publicly, that it will not comply with any such funding obligation hereunder, or has defaulted generally (excluding bona fide disputes) on its funding obligations under other loan agreements or credit agreements or other similar agreements or (iii) a Lender Insolvency Event has occurred and is continuing with respect to such Lender.  Any determination of a Lender Default under clauses (i) through (iii) above will be made by the Administrative Agent in its reasonable discretion acting in good faith.

 

“ R/C Maturity Date ” shall mean (a) the Tranche A R/C Maturity Date in the case of Tranche A Revolving Commitments or Tranche A Letters of Credit, (b) the Tranche B R/C Maturity Date in the case of Tranche B Revolving Commitments or Tranche B Letters of Credit and

 

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(c) the maturity date set forth in the applicable Extension Amendment or Incremental Joinder Agreement in the case of any other Tranche of Revolving Commitments.  Unless the context otherwise requires, references to the R/C Maturity Date in this Agreement shall mean the latest maturity date of any Tranche of Revolving Commitments then in effect.

 

“ Required Tranche Lenders ” shall mean:  (a) with respect to Lenders having Revolving Commitments or Revolving Loans of any particular Tranche, Non-Defaulting Lenders having more than 50% of the aggregate sum of the Unutilized R/C Commitments, Revolving Loans, Swingline Exposure and L/C Liabilities, in each case, in respect of such Tranche and then outstanding; (b) with respect to Lenders having Term A Facility Loans or Term A Facility Commitments, Lenders having more than 50% of the aggregate sum of the Term A Facility Loans and Term A Facility Commitments then outstanding; (c) with respect to Lenders having Term B Facility Loans, Term B Facility Commitments or Incremental Term B Loan Commitments, Lenders having more than 50% of the aggregate sum of the Term B Facility Loans, Term B Facility Commitments and Incremental Term B Loan Commitments then outstanding; and (d) for each New Incremental Term Loan Facility, if applicable, with respect to Lenders having New Incremental Term Loans or New Incremental Term Loan Commitments, in each case, in respect of such New Incremental Term Loan Facility, Lenders having more than 50% of the aggregate sum of such New Incremental Term Loans and New Incremental Term Loan Commitments then outstanding.

 

“ Revolving Availability Period ” shall mean, (i) with respect to the Tranche A Revolving Commitments, the period from and including the Closing Date to but excluding the earlier of the Tranche A R/C Maturity Date and the date of termination of the Tranche A Revolving Commitments, (ii) with respect to Tranche B Revolving Commitments, the period from and including the Second Amendment Effective Date to but excluding the earlier of the Tranche B R/C Maturity Date and the date of termination of the Tranche B Revolving Commitments and (iii) with respect to any other Tranche of Revolving Commitments, the period from and including the date such Tranche of Revolving Commitments is established to but excluding the earlier of the maturity date set forth in the applicable Extension Amendment or Incremental Joinder Agreement and the date of termination of such Tranche of Revolving Commitments.  Unless the context otherwise requires, references in this Agreement to the Revolving Availability Period shall mean the Revolving Availability Period ending on the latest R/C Maturity Date then in effect.

 

“ Term A Facility ” shall mean the credit facility comprising the Term A Facility Commitments and the Term A Facility Loans.

 

“ Term A Facility Lenders ” shall mean (a) on the Closing Date, the Lenders having Term A Facility Commitments on Annex A-2 hereof and (b) thereafter, Lenders from time to time holding any Term A Facility Loans, as the case may be, after giving effect to any assignments thereof permitted by Section 13.05(b).

 

“ Term A Facility Loans ” shall mean, collectively, term loans made pursuant to Section 2.01(b).

 

“ Term Facilities ” shall mean, collectively, the credit facilities comprising the Term A Facility, the Term B Facility, any New Incremental Term Loan Facilities and the credit facilities comprising the Extended Term Loans, if any.

 

“ Term Loans ” shall mean, collectively, the Term A Facility Loans, the Term B Facility Loans, any Extended Term Loans and any New Incremental Term Loans.

 

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“ Tranche ” shall mean (i) with respect to Lenders, each of the following classes of Lenders:  (a) Lenders having Tranche A Revolving Loans or Tranche A Revolving Commitments, (b) Lenders having Tranche B Revolving Loans or Tranche B Revolving Commitments, (c) Lenders having such other Tranche of Revolving Loans or Revolving Commitments created pursuant to an Extension Amendment or Incremental Joinder Agreement, (d) Lenders having Term A Facility Commitments or Term A Facility Loans, (e) Lenders having Term B Facility Commitments, Incremental Term B Loan Commitments or Term B Facility Loans and (f) Lenders having such other Tranche of Term Loan Commitments or Term Loans created pursuant to an Extension Amendment or Incremental Joinder Agreement, and (ii) with respect to Loans or Commitments, each of the following classes of Loans or Commitments:  (a) Tranche A Revolving Loans or Tranche A Revolving Commitments, (b) Tranche B Revolving Loans or Tranche B Revolving Commitments, (c) such other Tranche of Revolving Commitments or Revolving Loans created pursuant to an Extension Amendment or Incremental Joinder Agreement, (d) Term A Facility Commitments or Term A Facility Loans, (e) Term B Facility Commitments, Incremental Term B Loan Commitments or Term B Facility Loans and (f) such other Tranche of Term Loan Commitments or Term Loans created pursuant to an Extension Amendment or Incremental Joinder Agreement.

 

(iv)                               by amending the definition of “ Adjusted Net Income ” by replacing clause (b) of such definition with the following:

 

“(b) any non-recurring or extraordinary items of income (including cancellation of indebtedness income) or non-recurring or extraordinary items of cost or expense for such period and the net tax consequences thereof for such period (as determined in good faith by Borrower), except that Adjusted Net Income for such period shall be increased (to the extent not otherwise included in Adjusted Net Income) by the amount of insurance proceeds received during such period in respect of any Casualty Event; provided , however , that (A) such amount of insurance proceeds plus the Adjusted Net Income (excluding such insurance proceeds), if any, attributable to the Property subject to such Casualty Event for such period shall not exceed (B) an amount equal to the Adjusted Net Income attributable to such Property for the previous Test Period most recently ended prior to the date of such Casualty Event (calculated on a pro forma annualized basis to the extent such Property was not operational for the full previous Test Period)”.

 

(v)                                  by amending the definition of “ Adjusted Net Income ” by replacing clause (g) of such definition with the following:

 

“(g)  income of any Unrestricted Subsidiaries, Joint Ventures (other than Joint Ventures that are Restricted Subsidiaries) or 50% or less-owned entities, except that Adjusted Net Income shall be increased (to the extent not otherwise included in Adjusted Net Income) to the extent of the amount of dividends or other distributions or payments (including management fees) actually received in cash from such Unrestricted Subsidiaries, Joint Ventures or 50% or less-owned entities”.

 

(vi)                               by amending the definition of “ Cash Equivalents ” by deleting the “or” before clause (g) of such definition and adding the following after such clause (g) and before the “.”:

 

“; or (h) solely with respect to any Foreign Subsidiary, (i) marketable direct obligations issued by, or unconditionally guaranteed by, the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business, or issued by any agency of such country and backed by the full faith and credit of such country, in each case maturing within one year from the date of acquisition, so long as the indebtedness of such country is rated at least “A”

 

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or the equivalent thereof by S&P or “A2” or the equivalent thereof by Moody’s and (ii) time deposits, certificates of deposit or bankers’ acceptances issued by any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business, and whose short-term commercial paper rating from S&P is at least “A-1” or the equivalent thereof or from Moody’s is at least “P-1” or the equivalent thereof and maturing within one year of the date of acquisition.”

 

(vii)                            by amending the definition of “ Consolidated EBITDA ” by replacing clause (4) of such definition with the following:

 

“(4) any extraordinary non-cash items (other than cancellation of indebtedness income)”.

 

(viii)                         by amending the definition of “ Debt Issuance ” to replace each occurrence of the term “Consolidated Senior Leverage Ratio” in such definition with the term “Consolidated Senior Secured Leverage Ratio”.

 

(ix)                                 by amending the definition of “ Excess Cash Flow ” by inserting the following after “Commitments)” and before the “;” at the end of the first sentence of clause (h) of such definition:

 

“and excluding Indebtedness repurchased, redeemed, retired, acquired, defeased or cancelled pursuant to clause (n) of Section 10.10 hereof”.

 

(x)                                    by amending the definition of “ Fixed Charges ” by replacing the phrase “Asset Sales not in the ordinary course of business” in clause (c) of such definition with the following:

 

“(x) Asset Sales not in the ordinary course of business or (y) non-recurring or extraordinary items (including cancellation of indebtedness income), in each case, to the extent that such Asset Sales or non-recurring or extraordinary items are (A) excluded from Adjusted Net Income pursuant to the definition thereof and (B) otherwise not included in Consolidated EBITDA pursuant to the definition thereof”.

 

(xi)                                 by amending the definition of “ Interest Period ” by inserting “of such Revolving Loan” immediately after each reference to “R/C Maturity Date” in such definition.

 

(xii)                              by amending the definition of “ Investments ” by replacing clause (y) of the proviso of such definition with the following:

 

“(y) the amount of Investments in such Subsidiary that was deemed to have been made (directly or indirectly) at the time of, or has been made (directly or indirectly) since, the Designation of such Subsidiary as an Unrestricted Subsidiary, to the extent that such amount constitutes an outstanding Investment under clauses (i), (j), (l) or (m) of Section 10.04 at the time of such Revocation”.

 

(xiii)                           by amending the definition of “ L/C Liability ” by replacing the second sentence of such definition with the following:

 

“The L/C Liability of any Revolving Lender at any time shall mean such Revolving Lender’s participations and obligations in respect of outstanding Letters of Credit at such time”.

 

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(xiv)                          by amending the definition of “ LIBO Rate ” by adding the following after the first sentence of such definition:

 

“Notwithstanding the foregoing, for purposes of clause (c) of the definition of Alternate Base Rate, the rates referred to above shall be the rates as of 11:00 a.m., London, England time, on the date of determination (rather than the second Business Day preceding the date of determination).”

 

(xv)                             by amending the definition of “ Maintenance Capital Expenditures ” by replacing the phrase “which materially add to or significantly improve any such property” in such definition with the following:

 

“(x) which materially add to or significantly improve any such property or (y) expended with Net Available Proceeds from Casualty Events”.

 

(xvi)                          by amending the definition of “ Permitted Acquisition ” by replacing the phrase “all or substantially all the assets of, or all the Equity Interests in, a person or business of a person” in such definition with the following:

 

“all or substantially all the business, property or assets of, or Equity Interests in, a person or any division or line of business of a person”.

 

(xvii)                       by amending the definition of “ Permitted Subordinated Indebtedness ” by replacing clause (a) of such definition with the following:

 

“(a) (i) that contains subordination provisions that are reasonably satisfactory to Lead Arrangers (it being understood that subordination provisions providing that such Indebtedness is at least as subordinated in all material respects to the Obligations then outstanding as the obligations under the Borrower Outstanding Bond Indentures, as in effect on the date hereof, to the Obligations are reasonably satisfactory to Lead Arrangers) or (ii) that contains subordination provisions that are reasonably satisfactory to DBSI and”.

 

(xviii)                    by amending the definition of “ R/C Percentage ” by adding the following after the first sentence of such definition:

 

“For the purpose of determining the participation (and obligation) of a Revolving Lender in respect of a Tranche B Letter of Credit, the R/C Percentage of such Revolving Lender shall mean a fraction (expressed as a percentage) the numerator of which is the Tranche B Revolving Commitment of such Revolving Lender at such time and the denominator of which is the Total Tranche B Revolving Commitments at such time.”

 

(xix)                            by amending the definition of “ Telerate British Bankers Assoc. Interest Settlement Rates Page ” by replacing the phrase “Page 3750 on the Telerate System Incorporated Service” with the phrase “Reuters Screen LIBOR01”.

 

(b)                                  Section 1.02 of the Credit Agreement is hereby amended by deleting the following terms and related cross-references from the list of definitions in such Section: “ Incremental Revolving Commitment ”, “ Incremental Term A Loan Commitments ” and “ Incremental Term A Loans ”.

 

(c)                                   Section 1.04 of the Credit Agreement is hereby amended by replacing the second sentence thereof with the following:

 

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“The “Class” of a Loan (or of a Commitment to make a Loan) refers to whether such Loan is a Tranche A Revolving Loan, Tranche B Revolving Loan, any particular Tranche of New Incremental Revolving Loans, any particular Tranche of Revolving Loans created pursuant to an Extension Amendment, Term A Facility Loan, Term B Facility Loan, any particular Tranche of New Incremental Term Loans, any particular Tranche of Term Loans created pursuant to an Extension Amendment or a Swingline Loan, each of which constitutes a Class.”

 

(d)                                  Section 2.01(a) of the Credit Agreement is hereby restated in its entirety as follows:

 

“(a)                             Revolving Loans .  With respect to each Tranche of Revolving Commitments, each Revolving Lender holding Revolving Commitments in respect of such Tranche agrees, severally and not jointly, on the terms and conditions of this Agreement, to make revolving loans (the “ Revolving Loans ”) to Borrower in Dollars from time to time, on any Business Day during the Revolving Availability Period applicable to such Tranche, in an aggregate principal amount at any one time outstanding not exceeding the amount of such Revolving Commitment of such Revolving Lender in respect of such Tranche as in effect from time to time; provided , however , that, after giving effect to any Borrowing of Revolving Loans, (i) the sum of the aggregate principal amount of (without duplication) all Revolving Loans and Swingline Loans then outstanding plus the aggregate amount of all L/C Liabilities shall not exceed the Total Revolving Commitments as in effect at such time, (ii) the Revolving Exposure of such Revolving Lender shall not exceed such Revolving Lender’s Revolving Commitments in effect at such time and (iii) the Revolving Exposure of such Revolving Lender with respect to any particular Tranche of Revolving Commitments shall not exceed such Revolving Lender’s Revolving Commitments in effect at such time in respect of such Tranche.  Subject to the terms and conditions of this Agreement, during the applicable Revolving Availability Period, Borrower may borrow, repay and re-borrow the amount of the Revolving Commitments in respect of the relevant Tranche by means of ABR Loans and LIBOR Loans.”

 

(e)                                   Section 2.01(d) of the Credit Agreement is hereby amended by replacing the first sentence thereof with the following:

 

“No more than 30 separate Interest Periods in respect of LIBOR Loans may be outstanding at any one time.”

 

(f)                                     Section 2.01(e)(i) of the Credit Agreement is hereby amended by replacing clause (y) of the first sentence thereof with the following:

 

“(y) (1) the sum of the total Revolving Exposures exceeding the Total Revolving Commitments or (2) the Revolving Exposure of any Revolving Lender exceeding the Revolving Commitments of such Lender then in effect;”.

 

(g)                                  Section 2.02 of the Credit Agreement is hereby amended by adding the following after “R/C Percentage” and before the “.” at the end of the third sentence of such section:

 

“(for the avoidance of doubt, for so long as multiple Tranches of Revolving Commitments are outstanding, each borrowing of Revolving Loans shall be made pro rata across all such Tranches (based on the aggregate Unutilized R/C Commitments with respect to each such Tranche); provided , however , that borrowings of Revolving Loans made on the Second Amendment Effective Date and on each Incremental Effective Date may be made on such basis as shall result in all Revolving Loans outstanding on the Second Amendment Effective Date or such Incremental Effective Date, as applicable, (after giving effect to such borrowings) being held by all

 

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Revolving Lenders (including Incremental Tranche B Revolving Lenders or any Revolving Lender which is acquiring a new or additional Revolving Commitment on such Incremental Effective Date, as applicable) ratably in accordance with their Revolving Commitments (after giving effect to the extension of Incremental Tranche B Revolving Commitments or the relevant Incremental Revolving Commitments, as applicable); provided , further , that borrowings of Revolving Loans made on or after the fifth Business Day preceding the R/C Maturity Date applicable to a particular Tranche shall be made pro rata across all other Tranches)”.

 

(h)                                  Section 2.03(a)(i) of the Credit Agreement is hereby restated in its entirety as follows:

 

“(i) the aggregate amount of (A) all L/C Liabilities, plus the aggregate principal amount of all the Revolving Loans and Swingline Loans then outstanding, exceed at any time the Total Revolving Commitments as in effect at such time or (B) all L/C Liabilities in respect of Tranche B Letters of Credit, plus the aggregate principal amount of all the Tranche B Revolving Loans and Swingline Loans (to the extent constituting Swingline Exposure in respect of Tranche B Revolving Commitments) then outstanding, exceed at any time the Total Tranche B Revolving Commitments as in effect at such time,”

 

(i)                                      Section 2.03(a)(ii) of the Credit Agreement is hereby restated in its entirety as follows:

 

“the sum of the aggregate principal amount of all (i) Revolving Loans of any Revolving Lender then outstanding, plus such Revolving Lender’s L/C Liability plus such Revolving Lender’s Swingline Exposure exceed at any time such Revolving Lender’s Revolving Commitment as in effect at such time or (ii) Tranche B Revolving Loans of any Tranche B Revolving Lender then outstanding, plus such Tranche B Revolving Lender’s L/C Liability in respect of Tranche B Letters of Credit plus such Tranche B Revolving Lender’s Swingline Exposure (with respect to its Tranche B Revolving Commitments)  exceed at any time such Tranche B Revolving Lender’s Tranche B Revolving Commitment as in effect at such time,”

 

(j)                                      Section 2.03(a)(v) of the Credit Agreement is hereby restated in its entirety as follows:

 

“(v)                            the expiration date of any Letter of Credit extend beyond the earlier of (x) the fifth Business Day preceding the next succeeding R/C Maturity Date (or, in the case of Tranche B Letters of Credit only, the 364th day after the Tranche B R/C Maturity Date) and (y) the date twelve months following the date of such issuance for standby Letters of Credit or 180 days after the date of such issuance for commercial documentary Letters of Credit, unless the Required Revolving Lenders have approved such expiry date in writing (but never beyond the fifth Business Day prior to the next succeeding R/C Maturity Date (or, in the case of Tranche B Letters of Credit only, the 364th day after the Tranche B R/C Maturity Date)); provided , however , that any standby Letter of Credit may be automatically extendible for periods of up to one year (but never beyond the fifth Business Day prior to the next succeeding R/C Maturity Date (or, in the case of Tranche B Letters of Credit only, the 364th day after the Tranche B R/C Maturity Date)).”

 

(k)                                   Section 2.03(b) of the Credit Agreement is hereby amended by adding the following after “R/C Maturity Date” and before the “.” at the end of the second sentence of such section:

 

“(or, in the case of Tranche B Letters of Credit only, the 364th day after the Tranche B R/C Maturity Date)”.

 

(l)                                      Section 2.03(d) of the Credit Agreement is hereby amended by replacing the fourth sentence thereof with the following:

 

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“Borrower hereby unconditionally agrees to pay and reimburse L/C Lender for the amount of payment under such Letter of Credit in Dollars, together with interest thereon at a rate per annum equal to the Alternate Base Rate in effect from time to time plus the Applicable Margin applicable to (i) if such Letter of Credit is a Tranche A Letter of Credit, Revolving Loans (determined based on such Alternate Base Rate plus a weighted average of the Applicable Margins applicable to each Tranche of Revolving Commitments then outstanding based on the respective Revolving Commitments outstanding under each such Tranche) or (ii) if such Letter of Credit is a Tranche B Letter of Credit, Tranche B Revolving Loans, in each case, that are maintained as ABR Loans as are in effect from time to time from the date payment was made to such beneficiary to the date on which payment is due, such payment to be made not later than the first Business Day after the date on which Borrower receives the applicable L/C Payment Notice (or the second Business Day thereafter if such L/C Payment Notice is received on a date that is not a Business Day or after 1:00 p.m. (New York City time) on a Business Day).”

 

(m)                                Section 2.03(h) of the Credit Agreement is hereby amended by replacing the first and second sentence thereof with the following:

 

“Borrower shall pay to Administrative Agent, for the account of each Revolving Lender, in respect of each Letter of Credit for which such Revolving Lender has a L/C Liability, a letter of credit commission equal to (x) the rate per annum equal to the Applicable Margin for (A) if such Letter of Credit is a Tranche A Letter of Credit, Revolving Loans made by such Revolving Lender (determined based on a weighted average of the Applicable Margins applicable to each Tranche of Revolving Commitments held by such Revolving Lender based on such Revolving Lender’s respective Revolving Commitments outstanding under each such Tranche) or (B) if such Letter of Credit is a Tranche B Letter of Credit, Tranche B Revolving Loans, in each case, that are LIBOR Loans in effect from time to time, multiplied by (y) the daily Dollar Equivalent of the Stated Amount of each Letter of Credit (such Dollar Equivalent to be determined in accordance with Section 1.06) for the period from and including the date of issuance of each Letter of Credit (i) in the case of a Letter of Credit which expires in accordance with its terms, to and including such expiration date and (ii) in the case of a Letter of Credit which is drawn in full or is otherwise terminated other than on the stated expiration date of such Letter of Credit, to and excluding the date on such Letter of Credit is drawn in full or is terminated.  Such commission will be non-refundable and is to be paid (1) quarterly in arrears on each Quarterly Date, (2) on each R/C Maturity Date (other than in respect of Letters of Credit with a stated expiration date after such R/C Maturity Date) and (3) on the first day on or after the Tranche B R/C Maturity Date upon which no Letters of Credit remain outstanding.”

 

(n)                                  Section 2.03(h) of the Credit Agreement is hereby amended by adding the following after “Quarterly Date” and before the “.” at the end of the third sentence thereof:

 

“and on the first day on or after the Tranche B R/C Maturity Date upon which no Letters of Credit remain outstanding”.

 

(o)                                  Section 2.03(j) of the Credit Agreement is hereby restated in its entirety as follows:

 

“If and to the extent that any Revolving Lender fails to pay an amount required to be paid pursuant to Section 2.03(f) or 2.03(g) on the due date therefor, such Revolving Lender shall pay to L/C Lender (through Administrative Agent) interest on such amount for each day from and including such due date to but excluding the date such payment is made at a rate per annum equal to the Federal Funds Rate (as in effect from time to time) for the first three days and at the interest rate (in effect from time to time) applicable to (A) if the relevant Letter of Credit is a Tranche A

 

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Letter of Credit, Revolving Loans made by such Revolving Lender (determined based on a weighted average of the rates applicable to each Tranche of Revolving Commitments held by such Revolving Lender based on such Revolving Lender’s respective Revolving Commitments outstanding under each such Tranche) or (B) if the relevant Letter of Credit is a Tranche B Letter of Credit, Tranche B Revolving Loans, in each case, that are maintained as ABR Loans for each day thereafter.”

 

(p)                                  Section 2.04(a)(iv) of the Credit Agreement is hereby amended by deleting the phrase “, and to zero on the date that is the third anniversary of the Closing Date” at the end of such section.

 

(q)                                  Section 2.04(a)(v) of the Credit Agreement is hereby amended by replacing the phrase “, and to zero on the date that is the third anniversary of the Closing Date” at the end of such section with the following:

 

“; provided , however , that the Incremental Commitment Amount shall not be reduced by (i) the Incremental Tranche B Revolving Commitments extended on the Second Amendment Effective Date or (ii) the amount of Incremental Term Loan Commitments and Incremental Revolving Commitments that are used, concurrently with the extension of such Incremental Commitments, to repay then-outstanding Term Loans, in the case of Incremental Term Loan Commitments, or to repay, replace and terminate then-outstanding Revolving Commitments and Revolving Loans, in the case of Incremental Revolving Commitments and, in each case, to pay fees and expenses directly related to the extension of such Incremental Commitments”.

 

(r)                                     Section 2.04(a)(vi) of the Credit Agreement is hereby restated in its entirety as follows:

 

“(vi) The aggregate amount of the Revolving Commitments of any Tranche shall be automatically and permanently reduced to zero on the R/C Maturity Date applicable to such Tranche and the L/C Commitments and the Swingline Commitment shall be automatically and permanently reduced to zero on the latest R/C Maturity Date.”

 

(s)                                   Section 2.04(b) of the Credit Agreement is hereby restated in its entirety as follows:

 

“Borrower shall have the right at any time or from time to time (without premium or penalty except breakage costs (if any) pursuant to Section 5.05) (i) so long as no Revolving Loans, Swingline Loans or L/C Liabilities will be outstanding as of the date specified for termination (after giving effect to all transactions occurring on such date), to terminate the Revolving Commitments in their entirety, (ii) to reduce the aggregate amount of the Unutilized R/C Commitments (which shall be pro rata among Revolving Lenders) and (iii) so long as the remaining Tranche A Revolving Commitments will equal or exceed the outstanding Tranche A Revolving Loans, Swingline Exposure and L/C Liabilities of Tranche A Revolving Lenders in respect of such Tranche A Revolving Commitments, to reduce the aggregate amount of the Tranche A Revolving Commitments (which shall be pro rata among Tranche A Revolving Lenders) without concurrently reducing the aggregate amount of the Tranche B Revolving Commitments; provided , however , that (x) Borrower shall give notice of each such termination or reduction as provided in Section 4.05, and (y) each partial reduction shall be in an aggregate amount at least equal to $5.0 million (or any whole multiple of $1.0 million in excess thereof) or, if less, the remaining Unutilized R/C Commitments; provided , further , that, in the case of clause (iii) participations in Letters of Credit and Swingline Loans held by Tranche A Revolving Lenders shall be reallocated to Tranche B Revolving Lenders as shall be necessary in order that, after giving effect to such reallocation, such participations will be held by Tranche A Revolving Lenders and Tranche B

 

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Revolving Lenders ratably in accordance with their R/C Percentages after giving effect to such reduction in Tranche A Revolving Commitments.”

 

(t)                                     Section 2.05(a) of the Credit Agreement is hereby restated in its entirety as follows:

 

“(a)                             Borrower shall pay to Administrative Agent for the account of each Revolving Lender (other than a Defaulting Lender), with respect to such Revolving Lender’s Revolving Commitments, a commitment fee for the period from and including the Closing Date (or, following the conversion of such Revolving Commitment into another Tranche, the applicable Extension Date) to but not including the earlier of (i) the date such Revolving Commitment is terminated or expires (or is modified to constitute another Tranche) and (ii) the R/C Maturity Date applicable to such Revolving Commitment, in each case, computed at a rate per annum equal to the Applicable Fee Percentage in effect from time to time during such period on the daily average amount of such Revolving Lender’s Unutilized R/C Commitment.  For purposes of computing commitment fees with respect to Revolving Commitments, a Revolving Commitment of a Revolving Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and L/C Liability of such Revolving Lender (and the Swingline Exposure of such Revolving Lender shall be disregarded for such purpose).  Any accrued commitment fee under this Section 2.05(a) in respect of any Revolving Commitment shall be payable in arrears on each Quarterly Date and on the earlier of (i) the date such Revolving Commitment is terminated or expires (or is modified to constitute another Tranche) and (ii) the R/C Maturity Date applicable to such Revolving Commitment; provided , however , that accrued commitment fees in respect of Revolving Commitments modified to constitute Tranche B Revolving Commitments on the Second Amendment Effective Date shall be payable on the next succeeding Quarterly Date after the Second Amendment Effective Date.”

 

(u)                                  Section 2.05 of the Credit Agreement is hereby amended by adding new clause (d) to the end of such section as follows

 

“(d)                            Borrower shall pay to the Auction Manager for its own account, in connection with any Borrower Loan Purchase, such fees as may be agreed between Borrower and the Auction Manager.”

 

(v)                                  Section 2.09(b)(i) of the Credit Agreement is hereby amended by adding the following after “Borrower” and before the “.” at the end of Section 2.09(b)(i):

 

“; provided , however , that, except in connection with a reduction in Tranche A Revolving Commitments pursuant to Section 2.04(b)(iii), prior to the Tranche A R/C Maturity Date, each payment or prepayment of principal of Revolving Loans shall be made for the account of the relevant Lenders pro rata in accordance with the respective unpaid principal amount of Revolving Loans held by them”.

 

(w)                                Section 2.09(b)(iii) of the Credit Agreement is hereby amended by replacing the term “Consolidated Senior Leverage Ratio” in such section with the term “Consolidated Senior Secured Leverage Ratio”.

 

(x)                                    Section 2.10(a)(iv) of the Credit Agreement is hereby amended by replacing each occurrence of the term “Consolidated Senior Leverage Ratio” in such section with the term “Consolidated Senior Secured Leverage Ratio”.

 

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(y)                                  Section 2.10 of the Credit Agreement is hereby amended by adding new clause (f) to the end of such section as follows:

 

“(f)                               Outstanding Letters of Credit.    If any Letter of Credit is outstanding on the 30th day prior to the Tranche B R/C Maturity Date which has an expiry date later than the fifth Business Day preceding the Tranche B R/C Maturity Date (or which, pursuant to its terms, may be extended to a date later than the fifth Business Day preceding the Tranche B R/C Maturity Date), the Borrower shall, on such 30th day, either (x) pay to the Administrative Agent an amount of cash equal to 105% of the aggregate Stated Amount of all such Letters of Credit to be held as security for all obligations of the Borrower to the L/C Lender in respect of such Letters of Credit in a Cash Collateral account to be established by, and under the sole dominion and control of, the Administrative Agent (it being understood that such Cash Collateral shall be released to the extent that such aggregate Stated Amount is reduced upon the expiration or termination of such Letters of Credit, so that the Cash Collateral shall not exceed 105% of the aggregate Stated Amount of such Letters of Credit outstanding at any particular time) or (y) deliver to the Administrative Agent a standby letter of credit (other than a Letter of Credit) in favor of the Administrative Agent and in a stated amount equal to 105% of the aggregate Stated Amount of all such Letters of Credit, which standby letter of credit shall be in form and substance, and issued by a financially sound financial institution, reasonably acceptable to the Administrative Agent.”

 

(z)                                    Section 2.11(a) of the Credit Agreement is hereby amended by adding the following after the phrase “generally able to do so” and before the term “and/or” in clause (x) of such section:

 

“or such Lender is, and has been for a period of more than 10 Business Days, a Defaulting Lender”.

 

(aa)                             Section 2.11(a) of the Credit Agreement is hereby amended by replacing the parenthetical immediately following the phrase “and in each case L/C Interests of, the Replaced Lender” in clause (i) of the proviso to the first sentence of such section with the following:

 

“(or if the Replaced Lender is being replaced as a result of (1) clause (y) above and the applicable consent requires approval of all Lenders of a particular Tranche but not all Lenders, then the Replacement Lender shall acquire all Commitments, Loans and L/C Interests of such Replaced Lender under such Tranche or (2) such Replaced Lender being a Defaulting Lender, then the Replacement Lender shall acquire all Revolving Commitments, Revolving Loans and L/C Interests of such Replaced Lender under one or more Tranches of Revolving Commitments)”.

 

(bb)                           Section 2.12(a) of the Credit Agreement is hereby amended by replacing the first sentence thereof with the following:

 

“Borrower may, at any time during the period commencing on the Second Amendment Effective Date, by written notice to Administrative Agent, request (i) the establishment of one or more new Tranches of Revolving Commitments (“ New Incremental Revolving Commitments ” and the related Revolving Loans, “ New Incremental Revolving Loans ”), (ii) an increase to any existing Tranche of Revolving Commitments (the “ Incremental Existing Tranche Revolving Commitments ”), (iii)  the establishment of additional Term B Facility Loans with terms and conditions identical to the terms and conditions of existing Term B Facility Loans hereunder (“ Incremental Term B Loans ” and the related commitments, the “ Incremental Term B Loan Commitments ”); provided , however , that, subject to Section 3.02(d), upfront fees or original issue discount may be paid to Lenders providing such Incremental Term B Loan Commitments

 

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and/or (iv) the establishment of one or more new term loans (“ New Incremental Term Loans ” and the related commitments, “ New Incremental Term Loan Commitments ”); provided , however , that (x) the aggregate amount of all Incremental Commitments provided pursuant to this Section 2.12 shall not exceed the Incremental Commitment Amount (excluding, for the avoidance of doubt, Incremental Commitments excluded from the Incremental Commitment Amount pursuant to the definition thereof) and (y) any such request for Incremental Commitments shall be in a minimum amount of $25.0 million.”

 

(cc)                             Section 2.12(b) of the Credit Agreement is hereby amended by replacing the term “Increased Commitments” in such section with the term “Incremental Commitments”.

 

(dd)                           Section 2.12(b)(vi) of the Credit Agreement is hereby restated in its entirety as follows:

 

“(vi)                         the pro forma Consolidated Senior Secured Leverage Ratio of Borrower (after giving effect to (A) the borrowing of any such applicable Incremental Term Loans, (B) the application of the proceeds therefrom and (C) the application of Section 10.08(e) to any transactions of the type referenced therein (1) that have occurred after the most recent Test Date for which fina