TABLE OF CONTENTS

 

		Page
SECTION 1.	DEFINITIONS	2
1.1.	Defined Terms	2
1.2.	Other Interpretive Provisions	49
1.3.	Accounting Terms	50
1.4.	[Reserved]	50
1.5.	References to Agreements, Laws, Etc.	50
1.6.	[Reserved]	50
SECTION 2.	AMOUNT AND TERMS OF CREDIT	51
2.1.	Commitments	51
2.2.	Maximum Number of Borrowings	52
2.3.	Notice of Borrowing	52
2.4.	Disbursement of Funds	52
2.5.	Repayment of Loans; Evidence of Debt	53
2.6.	Conversions and Continuations	54
2.7.	Pro Rata Borrowings	54
2.8.	Interest	55
2.9.	Interest Periods	56
2.10.	Increased Costs, Illegality, Etc.	57
2.11.	Compensation	59
2.12.	Change of Lending Office	59
2.13.	Notice of Certain Costs	59
2.14.	Permanent Refinancing	59
SECTION 3.	[RESERVED]	61
SECTION 4.	FEES; COMMITMENTS	62
4.1.	Administrative Agent’s Fees	62
4.2.	[Reserved]	62
4.3.	Mandatory Termination of Commitments	62
SECTION 5.	PAYMENTS	62
5.1.	Voluntary Prepayments	62
5.2.	Mandatory Prepayments	63
5.3.	Method and Place of Payment	64
5.4.	Net Payments	65
5.5.	Computations of Interest	68
5.6.	Limit on Rate of Interest	68
SECTION 6.	CONDITIONS PRECEDENT TO INITIAL BORROWING	68
6.1.	Loan Documents	68
6.2.	Guarantee	69

 

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		Page
6.3.	Legal Opinions	69
6.4.	Notice of Borrowing	69
6.5.	Equity Investments	69
6.6.	Closing Certificates	69
6.7.	Authorization of Proceedings of Each Loan Party	69
6.8.	Fees	69
6.9.	Representations and Warranties	69
6.10.	Solvency Certificate	70
6.11.	Merger	70
6.12.	Patriot Act	70
SECTION 7.	[RESERVED]	70
SECTION 8.	REPRESENTATIONS, WARRANTIES AND AGREEMENTS	70
8.1.	Corporate Status	70
8.2.	Corporate Power and Authority	70
8.3.	No Violation	71
8.4.	Litigation	71
8.5.	Margin Regulations	71
8.6.	Governmental Approvals	71
8.7.	Investment Company Act	71
8.8.	True and Complete Disclosure	72
8.9.	Financial Condition; Financial Statements	72
8.10.	Tax Matters	72
8.11.	Compliance with ERISA	73
8.12.	Subsidiaries	74
8.13.	Intellectual Property	74
8.14.	Environmental Laws	74
8.15.	Properties	74
8.16.	Solvency	74
SECTION 9.	COVENANTS	74
9.1.	Reports and Other Information	74
9.2.	Compliance Certificate	76
9.3.	Taxes	76
9.4.	Stay, Extension and Usury Laws	76
9.5.	Limitation on Restricted Payments	76
9.6.	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	84
9.7.	Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock	86
9.8.	Asset Sales	93
9.9.	Transactions with Affiliates	95
9.10.	Liens	98
9.11.	Corporate Existence	98

 

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		Page
9.12.	Offer to Repurchase upon Change of Control	99
9.13.	Limitation on Guarantees of Indebtedness by Restricted Subsidiaries	100
9.14.	Merger, Consolidation or Sale of All or Substantially All Assets	101
9.15.	Successor Corporation Substituted	103
9.16.	[Reserved]	103
9.17.	[Reserved]	103
SECTION 10.	[RESERVED]	103
SECTION 11.	DEFAULTS AND REMEDIES	104
11.1.	Event of Default	104
11.2.	[Reserved]	106
11.3.	[Reserved]	106
11.4.	[Reserved]	106
11.5.	[Reserved]	106
11.6.	[Reserved]	106
11.7.	[Reserved]	106
11.8.	[Reserved]	106
11.9.	[Reserved]	106
11.10.	[Reserved]	106
11.11.	[Reserved]	106
11.12.	[Reserved]	106
11.13.	[Reserved]	106
11.14.	[Reserved]	107
11.15.	[Reserved]	107
11.16.	Remedies upon Event of Default, Waivers of Past Defaults	107
11.17.	Application of Proceeds	107
SECTION 12.	THE AGENTS	108
12.1.	Appointment	108
12.2.	Delegation of Duties	108
12.3.	Exculpatory Provisions	108
12.4.	Reliance by Agents	109
12.5.	Notice of Default	109
12.6.	Non-Reliance on Administrative Agent and Other Lenders	110
12.7.	Indemnification	110
12.8.	Agents in Their Individual Capacities	111
12.9.	Successor Agents	111
12.10.	Withholding Tax	112
12.11.	[Reserved]	112
12.12.	Agents under Guarantee	112
12.13.	Right to Enforce Guarantee	112
SECTION 13.	MISCELLANEOUS	113
13.1.	Amendments, Waivers and Releases	113

 

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		Page
13.2.	Notices	115
13.3.	No Waiver; Cumulative Remedies	115
13.4.	Survival of Representations and Warranties	115
13.5.	Payment of Expenses; Indemnification	116
13.6.	Successors and Assigns; Participations and Assignments	117
13.7.	Replacements of Lenders Under Certain Circumstances	121
13.8.	Adjustments; Set-off	122
13.9.	Counterparts	123
13.10.	Severability	123
13.11.	Integration	123
13.12.	GOVERNING LAW	123
13.13.	Submission to Jurisdiction; Waivers	123
13.14.	Acknowledgments	124
13.15.	WAIVERS OF JURY TRIAL	125
13.16.	Confidentiality	125
13.17.	Direct Website Communications	126
13.18.	USA PATRIOT Act	127
13.19.	Judgment Currency	127
13.20.	Payments Set Aside	128
SCHEDULES
Schedule 1.1(b)	Commitments
Schedule 1.1(g)	Debt Repayment
Schedule 6.3	Local Counsels
Schedule 8.3	Conflicts
Schedule 8.4	Litigation
Schedule 8.12	Subsidiaries
Schedule 13.2	Notice Addresses
EXHIBITS
Exhibit A	Form of Senior Unsecured Guarantee
Exhibit B	Form of Senior Refinancing Indenture
Exhibit C	Form of Senior Refinancing Registration Rights Agreement
Exhibit D-1	Form of Exchange Notice for Senior Cash Pay Loans
Exhibit D-2	Form of Exchange Notice for Senior PIK Loans
Exhibit E-1	Form of Legal Opinion of Simpson Thacher & Bartlett LLP
Exhibit E-2	Form of Legal Opinion of General Counsel
Exhibit F	Form of Loan Party Closing Certificate
Exhibit G	Form of Assignment and Acceptance
Exhibit H-1	Form of Promissory Note (Cash Pay)
Exhibit H-2	Form of Promissory Note (PIK)

 

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SENIOR UNSECURED LOAN AGREEMENT dated as of September 24, 2007, among FIRST DATA CORPORATION, a Delaware corporation (the “ Company ” or the “ Borrower ”), the lending institutions from time to time parties hereto (each a “ Lender ” and, collectively, the “ Lenders ”), CITIBANK, N.A., as Administrative Agent (such terms and each other capitalized term used but not defined in this preamble having the meaning provided in Section 1 ), CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Syndication Agent, and CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS CREDIT PARTNERS L.P., HSBC SECURITIES (USA) INC., LEHMAN BROTHERS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arrangers and Bookrunners.

 

WHEREAS, pursuant to the Agreement and Plan of Merger (as amended from time to time in accordance therewith, the “ Acquisition Agreement ”), dated as of April 1, 2007, by and among the Borrower, Holdings and Merger Sub, Merger Sub will merge with and into the Borrower (the “ Merger ”), with the Borrower surviving the Merger as a wholly-owned Subsidiary of Holdings;

 

WHEREAS, to fund, in part, the Merger, it is intended that Affiliates of Kohlberg Kravis Roberts & Co., L.P. and certain other investors will contribute an amount in cash to Holdings and/or a direct or indirect parent thereof in exchange for Stock and Stock Equivalents (which cash will be contributed to the Borrower in exchange for common Stock of the Borrower) (such contribution, the “ Equity Investment ”), which shall be no less than 22.5% of the aggregate pro forma capitalization of the Borrower on the Closing Date (the “ Minimum Equity Amount ”);

 

WHEREAS, in connection with the foregoing, the Borrower has requested that the Lenders extend credit in the form of Senior Interim Loans to the Borrower on the Closing Date, in Dollars, in an aggregate principal amount of $6,500,000,000, which shall initially consist of (a) $3,750,000,000 of Senior Interim Cash Pay Loans and (b) $2,750,000,000 of Senior Interim PIK Loans;

 

WHEREAS, to consummate the transactions contemplated by the Acquisition Agreement, it is intended that the Borrower will enter into (a) a senior secured credit agreement, dated as of the Closing Date, by and among the Borrower, the lenders from time to time parties thereto, Credit Suisse, Cayman Islands Branch, as administrative agent, swingline lender and letter of credit issuer, Citibank, N.A., as syndication agent, and Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and bookrunners, and the other agents party thereto (as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith, the “ Senior Secured Credit Agreement ”), pursuant to which (i)(1) the Borrower will borrow term loans in an aggregate principal amount of $11,775,000,000 and (2) a euro tranche term loan in an aggregate principal amount of  €709,219,858.16 (together, the “ Senior Secured Closing Date Term Loans ”), (ii) the Borrower may borrow term loans in an aggregate principal amount of up to $225,000,000 (the “ Senior Secured Delayed Draw Term Loans ”), (iii) the Borrower may borrow revolving credit loans (the “ Senior Secured Revolving Credit Loans ”) in an aggregate principal amount of up to $2,000,000,000 (not to exceed

 

 

$200,000,000 on the Closing Date), (iv) the Borrower may request letters of credit in an aggregate amount not to exceed $500,000,000 (which will reduce amounts available for Senior Secured Revolving Credit Loans), and (b) a senior subordinated interim loan agreement, dated as of the Closing Date, by and among the Borrower, the lenders from time to time parties thereto, Citibank, N.A., as administrative agent, Credit Suisse, Cayman Islands Branch, as syndication agent, and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and bookrunners (as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith, the “ Senior Subordinated Interim Loan Agreement ”), pursuant to which the Borrower will borrow senior subordinated loans in an aggregate principal amount of $2,500,000,000 (the “ Senior Subordinated Interim Loans ”); and

 

WHEREAS, the net proceeds of the Senior Interim Loans will be used by the Borrower, together with (a) the net proceeds of the Senior Secured Closing Date Term Loans, the Senior Secured Revolving Credit Loans (not to exceed $200,000,000) and the Senior Subordinated Interim Loans and (b) the net proceeds of the Equity Investments, on the Closing Date (or, in the case of the Debt Repayment, such later date as may be necessary to effect the Debt Repayments in accordance with the tender offers therefor) solely to effect the Merger, to effect the Debt Repayments and to pay Transaction Expenses.

 

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

 

SECTION 1.           Definitions

 

1.1.          Defined Terms .

 

(a)           As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural the singular):

 

“ ABR ” shall mean for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as announced from time to time by the Administrative Agent as its “prime rate.”  The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the ABR due to a change in such rate announced by the Administrative Agent or in the Federal Funds Effective Rate shall take effect at the opening of business on the day specified in the announcement of such change.

 

“ ABR Loan ” shall mean each Loan bearing interest based on the ABR.

 

“ Acceptable Commitment ” shall have the meaning provided in Section 9.8(b) .

 

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“ Acquired Indebtedness ” shall mean, with respect to any specified Person,

 

(1)           Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and

 

(2)           Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

 

“ Acquisition Agreement ” shall have the meaning provided in the preamble to this Agreement.

 

“ Administrative Agent ” shall mean Citibank, N.A., as the administrative agent for the Lenders under this Agreement and the other Loan Documents, or any successor administrative agent pursuant to Section 12 .

 

“ Administrative Agent’s Office ” shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 13.2 or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

 

“ Administrative Questionnaire ” shall have the meaning provided in Section 13.6(b)(ii)(D) .

 

“ Affiliate ” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.

 

“ Agent Parties ” shall have the meaning provided in Section 13.17(c) .

 

“ Agents ” shall mean the Administrative Agent, the Syndication Agent and each Joint Lead Arranger and Bookrunner.

 

“ Agreement ” shall mean this Senior Unsecured Loan Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

“ Agreement Currency ” shall have the meaning provided in Section 13.19 .

 

“ AHYDO redemption date ” shall have the meaning provided in Section 5.1(b) .

 

“ Applicable ABR Margin ” shall mean at any date, with respect to each ABR Loan, (a) 2.50% per annum with respect to Senior Cash Pay Loans and (b) 3.50% per annum with respect to Senior PIK Loans. If the Loans are not paid within the six-month period following the Closing Date, the Applicable ABR Margin will increase by 0.50% per annum at the end of such six-month period and shall increase by an additional 0.50% per annum at the end of each

 

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three-month period thereafter until the Interim Loan Conversion Date. At the Interim Loan Conversion Date the Applicable ABR Margin will increase by 0.25% per annum and shall increase by an additional 0.25% per annum at the end of each three-month period thereafter until the Term Loan Maturity Date. Notwithstanding the foregoing, the Applicable ABR Margin shall be capped such that the applicable interest rate (i) in the case of Senior Cash Pay Loans, shall not exceed the Senior Cash Pay Fixed Rate and (ii) in the case of Senior PIK Loans, shall not exceed the Senior PIK Fixed Rate.

 

“ Applicable Commitment ” shall have the meaning provided in Section 9.8(b) .

 

“ Applicable LIBOR Margin ” shall mean at any date, with respect to each LIBOR Loan, (a) 3.50% per annum with respect to Senior Cash Pay Loans and (b) 4.50% per annum with respect to Senior PIK Loans. If the Loans are not paid within the six-month period following the Closing Date, the Applicable LIBOR Margin will increase by 0.50% per annum at the end of such six-month period and shall increase by an additional 0.50% per annum at the end of each three-month period thereafter until the Interim Loan Conversion Date. At the Interim Loan Conversion Date, the Applicable LIBOR Margin will increase by 0.25% per annum and shall increase by an additional 0.25% per annum at the end of each three-month period thereafter until the Term Loan Maturity Date. Notwithstanding the foregoing, the Applicable LIBOR Margin shall be capped such that the applicable interest rate (i) in the case of Senior Cash Pay Loans, shall not exceed the Senior Cash Pay Fixed Rate and (ii) in the case of Senior PIK Loans, shall not exceed the Senior PIK Fixed Rate.

 

“ Approved Fund ” shall mean 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.

 

“ Asset Sale ” shall mean:

 

(1)           the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Borrower or any of its Restricted Subsidiaries (each referred to in this definition as a “ disposition ”); or

 

(2)           the issuance or sale of Equity Interests of any Restricted Subsidiary, whether in a single transaction or a series of related transactions (other than Preferred Stock of Restricted Subsidiaries issued in compliance with Section 9.7 hereof);

 

in each case, other than:

 

(a)           any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) no longer used in the ordinary course of business;

 

(b)           the disposition of all or substantially all of the assets of the Borrower in a manner permitted pursuant to the provisions described under Section 9.14 hereof or any disposition that constitutes a Change of Control pursuant to this Agreement;

 

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(c)           the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 9.5 hereof;

 

(d)           any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than $50.0 million;

 

(e)           any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Borrower to the Borrower or by the Borrower or a Restricted Subsidiary of the Borrower to another Restricted Subsidiary of the Borrower;

 

(f)            to the extent allowable under Section 1031 of the Code or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;

 

(g)           the lease, assignment or sublease of any real or personal property in the ordinary course of business;

 

(h)           any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

 

(i)            foreclosures, condemnation or similar action on assets or the granting of Liens not prohibited by this Agreement;

 

(j)            sales of accounts receivable, or participations therein, in connection with any Receivables Facility;

 

(k)           the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;

 

(l)            any financing transaction with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including Sale and Lease-Back Transactions and asset securitizations permitted by this Agreement;

 

(m)          dispositions in the ordinary course of business, including disposition in connection with any Settlement and dispositions of Settlement Assets and Merchant Agreements;

 

(n)           sales, transfers and other dispositions of Investments in joint ventures and Merchant Acquisition and Processing Alliances to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

 

(o)           sales, transfers and other dispositions of Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) relating to any equity reallocation in connection with an asset or equity contribution; and

 

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(p)           any issuance or sale of Equity Interests of any Restricted Subsidiary to any Person operating in a Similar Business for which such Restricted Subsidiary provides shared purchasing, billing, collection or similar services in the ordinary course of business.

 

“ Assignment and Acceptance ” shall mean an assignment and acceptance substantially in the form of Exhibit G , or such other form as may be approved by the Administrative Agent.

 

“ Authorized Officer ” shall mean the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer, the Vice President-Finance or any other senior officer of the Borrower designated as such in writing to the Administrative Agent by the Borrower.

 

“ Bankruptcy Code ” shall mean Title 11 of the United States Code, as amended.

 

“ Bankruptcy Law ” shall mean the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.

 

“ benefited Lender ” shall have the meaning provided in Section 13.8(a) .

 

“ Board ” shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

“ Borrower ” shall have the meaning provided in the preamble to this Agreement.

 

“ Borrowing ” shall mean and include the incurrence of the Loans on the Closing Date (or resulting from conversions on a given date after the Closing Date) having, in the case of LIBOR Loans, the same Interest Period.

 

“ Business Day ” shall mean any day excluding Saturday, Sunday and any other day on which banking institutions in New York City are authorized by law or other governmental actions to close, and, if such day relates to any interest rate settings as to a LIBOR Loan, any fundings, disbursements, settlements and payments in Dollars in respect of any such LIBOR Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be a day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

 

“ Capital Lease ” shall mean, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person.

 

“ Capital Stock ” shall mean:

 

(1)           in the case of a corporation, corporate stock;

 

(2)           in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

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(3)           in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(4)           any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

“ Capitalized Lease Obligations ” shall mean, as applied to any Person, all obligations under Capital Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.

 

“ Capitalized Software Expenditures ” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.

 

“ Cash Equivalents ” shall mean:

 

(1)           United States dollars;

 

(2)           euro or any national currency of any participating member state of the EMU or such local currencies held by the Borrower and its Restricted Subsidiaries from time to time in the ordinary course of business;

 

(3)           securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government (or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of the U.S. government) with maturities of 24 months or less from the date of acquisition;

 

(4)           certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $500.0 million in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;

 

(5)           repurchase obligations for underlying securities of the types described in clauses (3) and (4) entered into with any financial institution meeting the qualifications specified in clause (4) above;

 

(6)           commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case maturing within 24 months after the date of creation thereof;

 

(7)           marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating

 

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Agency), and in each case maturing within 24 months after the date of creation thereof;

 

(8)           readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition;

 

(9)           Indebtedness or Preferred Stock issued by Persons with a rating of A or higher from S&P or A2 or higher from Moody’s with maturities of 24 months or less from the date of acquisition;

 

(10)         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 or Aaa3 (or the equivalent thereof) or better by Moody’s; and

 

(11)         investment funds investing 95% of their assets in securities of the types described in clauses (1) through (10) above.

 

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.

 

“ Cash Interest ” shall have the meaning provided in Section 2.8(a)(ii) .

 

“ Casualty Event ” shall mean, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking by a Governmental Authority of, such property for which such Person or any of its Restricted Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other compensation.

 

“ Change in Law ” shall mean (a) the adoption of any law, treaty, order, policy, rule or regulation after the date of this Agreement, (b) any change in any law, treaty, order, policy, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender with any guideline, request, directive or order issued or made after the date hereof by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law).

 

“ Change of Control ” shall mean the occurrence of any of the following:

 

(1)           the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, to any Person other than a Permitted Holder; or

 

(2)           the Borrower becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section

 

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14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision), other than the Permitted Holders, in a single transaction or in a series of related transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or more of the total voting power of the Voting Stock of the Borrower or any of its direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of the Borrower.

 

“ Change of Control Offer ” shall have the meaning provided in Section 9.12(a) .

 

“ Change of Control Prepayment ” shall have the meaning provided in Section 9.12(a) .

 

“ Change of Control Prepayment Date ” shall have the meaning provided in Section 9.12(a)(2) .

 

“ Class ”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Senior Cash Pay Loans or Senior PIK Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Senior Interim Cash Pay Commitment or Senior Interim PIK Commitment.

 

“ Closing Date ” shall mean the date of the initial Borrowings hereunder.

 

“ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect at the date of this Agreement, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

 

“ Commitments ” shall mean, with respect to each Lender (to the extent applicable), such Lender’s Senior Interim Loan Commitment.

 

“ Committed Lenders ” shall mean Citicorp North America, Inc., Credit Suisse, Cayman Islands Branch, Deutsche Bank AG Cayman Islands Branch, Goldman Sachs Credit Partners L.P., HSBC Bank USA, National Association, Lehman Brothers Commercial Bank, Lehman Commercial Paper Inc. and Merrill Lynch, Capital Corporation.

 

“ Communications ” shall have the meaning provided in Section 13.17(a) .

 

“ Confidential Information ” shall have the meaning provided in Section 13.16 .

 

“ Consolidated Depreciation and Amortization Expense ” shall mean with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and Capitalized Software Expenditures, customer acquisition costs and incentive payments, conversion costs, contract acquisition costs, and amortization of unrecognized prior service

 

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costs and actuarial gains and losses related to pension and other post-employment benefits, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

 

“ Consolidated Interest Expense ” shall mean, with respect to any Person for any period, without duplication, the sum of:

 

(1)           consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances, (c) non-cash interest expense (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (t) penalties and interest relating to taxes, (u) accretion or accrual of discounted liabilities not constituting Indebtedness, (v) any expense resulting from the discounting of obligations in connection with the application of recapitalization accounting or purchase accounting, (w) “additional interest” with respect to the Senior Refinancing Registration Rights Agreement and any comparable “additional interest” with respect to other securities, (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expensing of bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility); plus

 

(2)           consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

 

(3)           interest income for such period.

 

For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

 

“ Consolidated Leverage Ratio ,” with respect to any Person as of any date of determination, shall mean the ratio of (x) Consolidated Total Indebtedness of such Person, less the aggregate amount of cash and Cash Equivalents held (free and clear of all Liens, other than Liens permitted under Section 9.10 hereof, other than clause (20) of the definition of Permitted Liens) by (A) the Borrower and its Restricted Subsidiaries (other than settlement assets as shown on the balance sheet of such Person) and (B) any Joint Venture (other than settlement assets as shown on the balance sheet of such Person) in an amount corresponding to the Borrower’s or any Restricted Subsidiary’s, as applicable, proportionate share thereof, based on its ownership of such Joint Venture’s voting stock, computed as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the date on which such event

 

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for which such calculation is being made shall occur to (y) the aggregate amount of EBITDA of such Person for the period of the most recently ended four full consecutive fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”

 

“ Consolidated Net Income ” shall mean, with respect to any Person for any period, the aggregate of the Net Income of such Person for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided , however , that, without duplication,

 

(1)           any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including relating to the Transaction to the extent incurred on or prior to September 30, 2008 and litigation and regulatory settlements), severance, relocation costs, consolidation and closing costs, integration and facilities opening costs, spin-off costs, business optimization costs and expenses (including data center consolidation initiatives and other costs relating to initiatives aimed at profitability improvements), transition costs, restructuring costs, charges or reserves, signing, retention or completion bonuses, and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded,

 

(2)           the cumulative effect of a change in accounting principles during such period shall be excluded,

 

(3)           any after-tax effect of income (loss) from disposed, abandoned or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations shall be excluded,

 

(4)           any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments other than in the ordinary course of business, as determined in good faith by the Borrower, shall be excluded,

 

(5)           the Net Income for such period of any Person that is an Unrestricted Subsidiary shall be excluded, and, solely for the purpose of determining the amount available for Restricted Payments under clause 3(a) of Section 9.5(a) hereof, the Net Income for such period of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting shall be excluded; provided that Consolidated Net Income of the Borrower shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period,

 

(6)           solely for the purpose of determining the amount available for Restricted Payments under clause (3)(a) of Section 9.5(a) hereof, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent that

 

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the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,

 

(7)           effects of adjustments (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries) in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting in relation to the Transaction or any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,

 

(8)           any effect of income (loss) from the early extinguishment of Indebtedness shall be excluded,

 

(9)           the mark-to-market effects on Net Income during the period of any derivatives or similar financial instruments, including the ineffective portion of Hedging Obligations (other than such effects settled in cash) shall be excluded,

 

(10)         any impairment charge or asset write-off or write-down, including, without limitation, impairment charges or asset write-offs related to intangible assets, long-lived assets or investments in debt and equity securities, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded,

 

(11)         any non-cash compensation charge or expense, including any such charge arising from grants of stock appreciation or similar rights, stock options, restricted stock or other rights, and any cash charges associated with the rollover, acceleration or payout of Equity Interests by management of the Borrower or any of its direct or indirect parent companies in connection with the Transaction, shall be excluded,

 

(12)         any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,

 

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(13)         accruals and reserves that are established or adjusted within twelve months after the Closing Date that are so required to be established as a result of the Transaction in accordance with GAAP, or changes as a result of adoption or modification of accounting policies, shall be excluded, and

 

(14)         to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption shall be excluded.

 

Notwithstanding the foregoing, for the purpose of Section 9.5 hereof only (other than clause (3)(d) of Section 9.5(a) hereof), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Borrower and its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Borrower and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by the Borrower or any of its Restricted Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under clause (3)(d) of Section 9.5(a) hereof. Furthermore, there shall be excluded from Consolidated Net Income any net income (losses) attributable to Integrated Payment Systems Inc. and Integrated Payment Systems Canada Inc.

 

“ Consolidated Secured Debt Ratio ” as of any date of determination, shall mean the ratio of (1) Consolidated Total Indebtedness of the Borrower and its Restricted Subsidiaries that is secured by Liens on collateral securing the Senior Secured Credit Agreement, less the aggregate amount of cash and Cash Equivalents held (free and clear of all Liens, other than Liens permitted under Section 9.10 hereof, other than clause (20) of the definition of Permitted Liens) by (A) the Borrower and its Restricted Subsidiaries (other than settlement assets as shown on the balance sheet of such Person) and (B) any Joint Venture (other than settlement assets as shown on the balance sheet of such Person) in an amount corresponding to the Borrower’s or any Restricted Subsidiary’s, as applicable, proportionate share thereof, based on its ownership of such Joint Venture’s voting stock, computed as of the end of the most recent fiscal period for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur to (2) the Borrower’s EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”

 

“ Consolidated Total Indebtedness ” shall mean, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Borrower and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for

 

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borrowed money, Obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt, all obligations relating to Receivables Facilities) and (2) the aggregate amount of all outstanding Disqualified Stock of the Borrower and all Disqualified Stock and Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP. For purposes hereof, the “ maximum fixed repurchase price ” of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith by the Borrower.

 

“ Contingent Obligations ” shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,

 

(1)           to purchase any such primary obligation or any property constituting direct or indirect security therefor,

 

(2)           to advance or supply funds

 

(a)           for the purchase or payment of any such primary obligation, or

 

(b)           to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or

 

(3)           to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

 

“ Contractual Requirement ” shall have the meaning provided in Section 8.3 .

 

“ Credit Event ” shall mean and include the making (but not the conversion or continuation) of the Loans on the Closing Date.

 

“ Credit Facilities ” shall mean, with respect to the Borrower or any of its Restricted Subsidiaries, one or more debt facilities, including the Senior Secured Credit Agreement, or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit or other long term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or

 

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commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof ( provided that such increase in borrowings is permitted under Section 9.7 hereof) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.

 

“ Credit Suisse ” shall mean Credit Suisse, Cayman Islands Branch and its successors.

 

“ Debt Incurrence Prepayment Event ” shall mean any issuance or incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness permitted to be issued or incurred under Section 9.7(b) other than in the case of Section 9.7(b)(2) or 9.7(b)(13) with respect to any refinancing of Indebtedness incurred under Section 9.7(b)(2) , any Senior Notes.

 

“ Debt Repayment ” shall mean the repayment, prepayment, repurchase or defeasance of the Indebtedness of the Borrower that is identified on Schedule 1.1(g) and that is repaid, prepaid, repurchased or defeased on the Closing Date (or such later date as may be necessary to effect the Debt Repayment in accordance with the tender offers therefor).

 

“ Declined Proceeds ” shall have the meaning provided in Section 5.2(h) .

 

“ Default ” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.

 

“ Defaulting Lender ” shall mean any Lender with respect to which a Lender Default is in effect.

 

“ Deferred Net Cash Proceeds ” shall have the meaning provided such term in the definition of “Net Cash Proceeds.”

 

“ Deferred Net Cash Proceeds Payment Date ” shall have the meaning provided such term in the definition of “Net Cash Proceeds.”

 

“ Designated Non-cash Consideration ” shall mean the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Borrower, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

 

“ Designated Preferred Stock ” shall mean Preferred Stock of the Borrower or any parent company thereof (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Borrower or

 

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the applicable parent company thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3) of Section 9.5(a) hereof.

 

“ Disqualified Stock ” shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the Term Loan Maturity Date or the date the Loans are no longer outstanding; provided , however , that if such Capital Stock is issued to any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

“ Dollars ” and “ $ ” shall mean dollars in lawful currency of the United States of America.

 

“ Domestic Subsidiary ” shall mean each Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof, or the District of Columbia.

 

“ EBITDA ” shall mean, with respect to any Person for any period, the Consolidated Net Income of such Person for such period

 

(1)           increased (without duplication) by:

 

(a)           provision for taxes based on income or profits or capital gains, including, without limitation, foreign, federal, state, franchise and similar taxes (such as the Pennsylvania capital tax) and foreign withholding taxes (including penalties and interest related to such taxes or arising from tax examinations) of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus

 

(b)           Fixed Charges of such Person for such period (including (x) net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (1)(t) , (u) , (v) , (w) , (x) , (y) and (z) of the definition thereof, and, in each such case, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus

 

(c)           Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same was deducted (and not added back) in computing Consolidated Net Income; plus

 

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(d)           any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness(and any amendment or modification to any such transaction) permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the this Agreement, the Senior Subordinated Interim Loan Agreement and the Senior Secured Credit Agreement and (ii) any amendment or other modification of the Senior Interim Loans, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

 

(e)           any other non-cash charges, including any write-offs or write-downs, reducing Consolidated Net Income for such period ( provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus

 

(f)            the amount of any minority interest expense consisting of income attributable to minority equity interests of third parties deducted (and not added back) in such period in calculating Consolidated Net Income; plus

 

(g)           the amount of management, monitoring, consulting and advisory fees and related expenses paid in such period to the Investors to the extent otherwise permitted under Section 9.9 hereof; plus

 

(h)           the amount of net cost savings and net cash flow effect of revenue enhancements related to new agreements, or amendments to existing agreements, with customers or joint ventures, projected by the Borrower in good faith to be realized as a result of specified actions taken or to be taken (calculated on a pro forma basis as though such cost savings and revenue enhancements had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such cost savings and enhancements are reasonably identifiable and factually supportable, (y) such actions have been taken or are to be taken within 12 months after the date of determination to take such action and (z) no cost savings or revenue enhancements shall be added pursuant to this clause (h) to the extent duplicative of any expenses or charges relating to such cost savings that are included in clause (e) above with respect to such period (which adjustments may be incremental to pro forma adjustments made pursuant to the second paragraph of the definition of “Fixed Charge Coverage Ratio”); plus

 

(i)            the amount of loss on sales of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility; plus

 

(j)            any costs or expense incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other

 

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management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of an issuance of Equity Interests of the Borrower (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (3) of Section 9.5(a) hereof; plus

 

(k)           an amount equal to the Borrower’s and its Restricted Subsidiaries’ proportional share of the items described in clauses (1)(a) and (b) of this definition relating to each Joint Venture, in each case determined as if such Joint Venture was a Restricted Subsidiary;

 

(2)           decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any prior period; and

 

(3)           increased or decreased by (without duplication):

 

(a)           any net gain or loss resulting in such period from Hedging Obligations and the application of Statement of Financial Accounting Standards No. 133 and its related pronouncements and interpretations; plus or minus , as applicable,

 

(b)           any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency exchange risk).

 

“ EMU ” shall mean the economic and monetary union as contemplated in the Treaty on European Union.

 

“ Engagement Letter ” shall mean the Engagement Letter, dated as of April 1, 2007, among Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co., HSBC Securities (USA) Inc., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated  and Merger Sub.

 

“ Environmental Claims ” shall mean any and all actions, suits, orders, decrees, demands, demand letters, claims, liens, notices of noncompliance, violation or potential responsibility or investigation (other than internal reports prepared by the Borrower or any of the Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “ Claims ”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence, release or threatened release of Hazardous

 

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Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials), or the environment including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands.

 

“ Environmental Law ” shall mean any applicable Federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to the protection of environment, including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, or human health or safety (to the extent relating to human exposure to Hazardous Materials), or Hazardous Materials.

 

“ Equity Interests ” shall mean Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.

 

“ Equity Investments ” shall have the meaning provided in the preamble to this Agreement.

 

“ Equity Offering ” shall mean any public or private sale of common stock or Preferred Stock of the Borrower or any of its direct or indirect parent companies (excluding Disqualified Stock), other than:

 

(1)           public offerings with respect to the Borrower’s or any direct or indirect parent company’s common stock registered on Form S-8;

 

(2)           issuances to any Subsidiary of the Borrower; and

 

(3)           any such public or private sale that constitutes an Excluded Contribution.

 

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Section references to ERISA are to ERISA as in effect at the date of this Agreement and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.

 

“ ERISA Affiliate ” shall mean each person (as defined in Section 3(9) of ERISA) that together with the Borrower would be deemed to be a “single employer” within the meaning of 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.

 

“ euro ” shall mean the single currency of participating member states of the EMU.

 

“ Event of Default ” shall have the meaning provided in Section 11 .

 

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“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

“ Exchange Date ” shall have the meaning provided in Section 2.14(b)(i) .

 

“ Exchange Notice ” shall have the meaning provided in Section 2.14(b)(ii) .

 

“ Excluded Contribution ” shall mean net cash proceeds, marketable securities or Qualified Proceeds received by the Borrower after the Closing Date from

 

(1)           contributions to its common equity capital, and

 

(2)           the sale (other than to a Subsidiary of the Borrower or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Borrower,

 

in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the Borrower on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in clause (3) of Section 9.5(a) hereof.

 

“ Excluded Taxes ” shall mean, with respect to any Agent or any Lender, (a)(i) income taxes imposed on or measured by net income and franchise and excise taxes (imposed in lieu of net income taxes) imposed on such Agent or Lender, and (ii) any Taxes imposed on any Agent or any Lender as a result of any current or former connection between such Agent or Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising from such Agent or Lender having executed, delivered or performed its obligations or received a payment under, or having been a party to or having enforced, this Agreement or any other Loan Document), and (b) in the case of a Non-U.S. Lender any U.S. federal withholding tax that is imposed on amounts payable to such Non-U.S. Lender under the law in effect at the time such Non-U.S. Lender becomes a party to this Agreement (or, in the case of a Non-U.S. Participant, on the date such Non-U.S. Participant became a Participant hereunder); provided that this subclause (b) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this subclause (b) ) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer or (y) any Tax is imposed on a Lender in connection with an interest or participation in any Loan or other obligation that such Lender was required to acquire pursuant to Section 13.8(a) or that such Lender acquired pursuant to Section 13.7 (it being understood and agreed, for the avoidance of doubt, that any U.S. federal withholding tax imposed on a Non-U.S. Lender as a result of a Change in Law occurring after the time such Non-U.S. Lender became a party to this Agreement (or designates a new lending office) shall not be an Excluded Tax) and (c) any Tax to the extent attributable to such Lender’s failure

 

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to comply with Section 5.4(d) (in the case of any Non-U.S. Lender) or Section 5.4(c) (in the case of a U.S. Lender).

 

“ Federal Funds Effective Rate ” shall mean, for any day, the weighted average of the per annum rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published on the next succeeding Business Day by the Federal Reserve Bank of New York; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

 

“ Fee Letter ” shall mean the Fee Letter, dated as of April 1, 2007, among Citigroup Global Markets Inc., Credit Suisse, Credit Suisse Securities (USA) LLC, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Goldman, Sachs & Co., Goldman Sachs Credit Partners L.P., HSBC Bank USA, National Association, HSBC Securities (USA) Inc., Lehman Brothers Inc., Lehman Brothers Commercial Bank, Lehman Commercial Paper Inc., Merrill Lynch Capital Corporation and Merger Sub.

 

“ Fees ” shall mean all amounts payable pursuant to, or referred to in, Section 4.1 .

 

“ Fixed Charge Coverage Ratio ” shall mean, with respect to any Person for any period, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Fixed Charge Coverage Ratio Calculation Date ”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma   effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period.

 

For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Borrower or any of its Restricted Subsidiaries during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro forma   basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If, since the beginning of such period, any Person that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any of its Restricted Subsidiaries

 

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since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma   effect thereto for such period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the applicable four-quarter period.

 

For purposes of this definition, whenever pro forma   effect is to be given to a transaction, the pro forma   calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower (and may include, for the avoidance of doubt, cost savings and operating expense reductions resulting from such Investment, acquisition, merger or consolidation which is being given pro forma effect that have been or are expected to be realized). If any Indebtedness bears a floating rate of interest and is being given pro forma   effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma   basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate or other rate shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate. Any such pro forma calculation may include adjustments appropriate to exclude from EBITDA the results the results of Integrated Payment Systems Inc. and Integrated Payment Systems Canada Inc.

 

“ Fixed Charges ” shall mean, with respect to any Person for any period, the sum of:

 

(1)           Consolidated Interest Expense of such Person for such period;

 

(2)           all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any Restricted Subsidiary during such period; and

 

(3)           all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock during such period.

 

“ Foreign Plan ” shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by the Borrower or any of its Subsidiaries with respect to employees employed outside the United States.

 

“ Foreign Subsidiary ” shall mean with respect to any Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States, any

 

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state thereof or the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary.

 

“ Fund ” shall mean 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.

 

“ GAAP ” shall mean generally accepted accounting principles in the United States which are in effect on the Closing Date.

 

“ Governmental Authority ” shall mean any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including a central bank or stock exchange.

 

“ Granting Lender ” shall have the meaning provided in Section 13.6(g) .

 

“ Guarantee ” shall mean (a) the Guarantee made by each Guarantor in favor of the Administrative Agent for the benefit of the Guaranteed Parties, substantially in the form of Exhibit A , and (b) any other guarantee of the Obligations made by a Restricted Subsidiary that is a Domestic Subsidiary in form and substance reasonably acceptable to the Administrative Agent, in each case as the same may be amended, supplemented or otherwise modified from time to time.

 

“ Guarantee Obligations ” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided , however , that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

 

“ Guaranteed Parties ” shall mean the Administrative Agent, any other Agent and each Lender, in each case, with respect to the Obligations or any Guarantee, and each sub-agent

 

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appointed by the Administrative Agent pursuant to Section 13 with respect to matters relating to the Obligations.

 

“ Guarantors ” shall mean each Restricted Subsidiary that provides a Guarantee hereunder pursuant to Section 9.13 or otherwise.

 

“ Hazardous Materials ” shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, which is prohibited, limited or regulated by any Environmental Law.

 

“ Hedging Obligations ” shall mean, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks either generally or under specific contingencies.

 

“ Historical Financial Statements ” shall mean the audited consolidated balance sheets of the Borrower as of December 31, 2006 and December 31, 2005 and the audited consolidated statements of income, stockholders’ equity and cash flows of the Borrower for each of the fiscal years in the three year period ending on December 31, 2006.

 

“ Holdco Indenture ” shall mean the indenture dated as of the Closing Date entered into between Holdings and The Bank of New York, as trustee, relating to the Holdco Notes.

 

“ Holdco Notes ” shall mean the $1,000,000,000 aggregate principal amount of 11½% Senior PIK Notes due 2016 issued by Holdings on the Closing Date.

 

“ Holdings ” shall mean New Omaha Holdings Corporation, a Delaware corporation, and its successors.

 

“ Indebtedness ” shall mean, with respect to any Person, without duplication:

 

(1)            any indebtedness (including principal and premium) of such Person, whether or not contingent:

 

(a)           in respect of borrowed money;

 

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(b)           evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof);

 

(c)           representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes an obligation in respect of a commercial letter of credit, a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (ii) any earn-out obligations until such obligation, within 60 days of becoming due and payable, has not been paid and becomes a liability on the balance sheet of such Person in accordance with GAAP; or

 

(d)           representing any Hedging Obligations;

 

if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;

 

(2)           to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise on, the obligations of the type referred to in clause (1) of a third Person (whether or not such items would appear upon the balance sheet of the such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business; provided that the amount of Indebtedness of any Person for purposes of this clause (2) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith; and

 

(3)           to the extent not otherwise included, the obligations of the type referred to in clause (1) of a third Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person;

 

provided , however , that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the ordinary course of business, (b) obligations under or in respect of Receivables Facilities or (c) Settlement Indebtedness.

 

“ indemnified liabilities ” shall have the meaning provided in Section 13.5 .

 

“ Indemnified Taxes ” shall mean all Taxes (including Other Taxes) other than (i) Excluded Taxes and (ii) any interest, penalties or expenses caused by an Agent’s or Lender’s gross negligence or willful misconduct.

 

“ Indentures ” shall mean the Senior Refinancing Indenture and/or the Senior Subordinated Refinancing Indenture, as the context requires.

 

“ Independent Financial Advisor ” shall mean an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized

 

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standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged.

 

“ Insolvency or Liquidation Proceeding ” shall mean:

 

(a)           any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to any Loan Party;

 

(b)           any other voluntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Loan Party or with respect to a material portion of their respective assets;

 

(c)           any liquidation, dissolution, reorganization or winding-up of any Loan Party whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or

 

(d)           any assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Loan Party.

 

“ Interest Period ” shall mean, with respect to any Loan, the interest period applicable thereto, as determined pursuant to Section 2.9 .

 

“ Interim Loan Conversion Date ” shall mean September 24, 2008 or, if such date is not a Business Day, the next succeeding Business Day.

 

“ Investment Grade Rating ” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB  (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

 

“ Investment Grade Securities ” shall mean:

 

(1)           securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);

 

(2)           debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries;

 

(3)           investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and

 

(4)           corresponding instruments in countries other than the United States customarily utilized for high quality investments.

 

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“ Investments ” shall mean, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commissions, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Borrower in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. For purposes of the definition of “Unrestricted Subsidiary” and Section 9.5 hereof:

 

(1)           “Investments” shall include the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:

 

(a)           the Borrower’s “Investment” in such Subsidiary at the time of such redesignation; less

 

(b)           the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and

 

(2)            any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case fair market value as determined in good faith by the Borrower.

 

“ Investors ” shall mean Kohlberg Kravis Roberts & Co. L.P., KKR 2006 Fund L.P., Citigroup Global Markets Inc., Credit Suisse Management LLC, Deutsche Bank Investment Partners, Inc., HSBC Bank plc, LB I Group Inc., GMI Investments, Inc., Citigroup Capital Partners II 2007 Citigroup Investment, L.P., Citigroup Capital Partners II Employee Master Fund, L.P., Citigroup Capital Partners II Onshore, L.P., Citigroup Capital Partners II Cayman Holdings, L.P., CGI CPE LLC, GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co. KG, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore Fund, L.P. GS Mezzanine Partners 2006 Fund, L.P. and Goldman Sachs Investments Ltd. and each of their respective Affiliates but not including, however, any portfolio companies of any of the foregoing.

 

“ Joint Lead Arrangers and Bookrunners ” shall mean Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

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“ Joint Venture ” shall mean, at any date of determination, each joint venture accounted for as an equity method investee of the Borrower and its Subsidiaries, determined in accordance with GAAP.

 

“ Judgment Currency ” shall have the meaning provided in Section 13.19 .

 

“ Lender ” shall have the meaning provided in the preamble to this Agreement.

 

“ Lender Default ” shall mean (a) the failure (which has not been cured) of a Lender to make available its portion of any Borrowing or (b) a Lender having notified the Administrative Agent and/or the Borrower that it does not intend to comply with the obligations under Section 2.1(a) , or (c) a Lender becoming the subject of a bankruptcy or insolvency proceeding.

 

“ LIBOR Loan ” shall mean any Loan bearing interest at a rate determined by reference to the LIBOR Rate.

 

“ LIBOR Rate ” shall mean, for any Interest Period with respect to a LIBOR Loan in Dollars, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Bloomberg (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “LIBOR Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered by the Administrative Agent’s London Branch to major banks in the applicable London interbank eurocurrency market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

 

“ Lien ” shall mean, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.

 

“ Loan ” shall mean any Senior Interim Loan or Senior Term Loan made by any Lender hereunder and any Loan made as a result of the accrual of PIK Interest.

 

“ Loan Docum ents” shall mean this Agreement, the Guarantees and any promissory notes issued by the Borrower hereunder.

 

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“ Loan Party ” shall mean the Borrower, the Guarantors and each other Subsidiary of the Borrower that is a party to a Loan Document.

 

“ Material Adverse Effect ” shall mean a circumstance or condition affecting the business, assets, operations, properties or financial condition of the Borrower and the Subsidiaries, taken as a whole, that would, individually or in the aggregate, materially adversely affect (a) the ability of the Borrower and the other Loan Parties, taken as a whole, to perform their payment obligations under this Agreement or any of the other Loan Documents or (b) the rights and remedies of the Administrative Agent and the Lenders under this Agreement or any of the other Loan Documents.

 

“ Material Subsidiary ” shall mean, at any date of determination, (i) each Restricted Subsidiary of the Borrower (a) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 5% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or greater than 5% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Material Subsidiaries have, in the aggregate, (x) total assets at the last day of such Test Period equal to or greater than 10% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (y) revenues during such Test Period equal to or greater than 10% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP, then the Borrower shall, on the date on which financial statements for such quarter are delivered pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as “Material Subsidiaries.”

 

“ Maturity Date ” shall mean (a) if the Loans have not been converted to Senior Term Loans, September 24, 2008 or, if such date is not a Business Day, the next succeeding Business Day, or (b) if the Loans have been converted to Senior Term Loans, September 24, 2015 or, if such date is not a Business Day, the next succeeding Business Day (with respect to clause (b) only, the “ Term Loan Maturity Date ”).

 

“ Merchant Acquisition and Processing Alliance ” shall mean any joint venture or other strategic alliance entered into with any financial institution or other third party primarily entered into to offer Merchant Services.

 

“ Merchant Agreement ” shall mean any contract entered into with a merchant relating to the provision of Merchant Services.

 

“ Merchant Services ” shall mean services provided to merchants relating to the authorization, transaction capture, settlement, chargeback handling and internet-based transaction processing of credit, debit, stored-value and loyalty card and other payment transactions (including provision of point of service devices and other equipment necessary to capture merchant transactions and other ancillary services).

 

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“ Merger ” shall have the meaning provided in the preamble to this Agreement.

 

“ Merger Sub ” shall mean Omaha Acquisition Corporation, a Delaware corporation.

 

“ Minimum Borrowing Amount ” shall mean (a) with respect to a Borrowing of LIBOR Loans, $5,000,000 and (b) with respect to a Borrowing of ABR Loans, $1,000,000.

 

“ Minimum Equity Amount ” shall have the meaning provided in the preamble to this Agreement.

 

“ Moody’s ” shall mean Moody’s Investors Service, Inc. and any successor to its rating agency business.

 

“ Multiemployer Plan ” shall mean a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“ Net Asset Sale Proceeds ” shall mean the aggregate cash proceeds received by the Borrower or any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash Consideration, including legal, accounting and investment banking fees, and brokerage and sales commissions, any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), amounts required to be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness required (other than required by clause (1) of Section 9.8(b) hereof) to be paid as a result of such transaction and any deduction of appropriate amounts to be provided by the Borrower or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Borrower or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.

 

“ Net Cash Proceeds ” shall mean, with respect to any Prepayment Event, (a) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable) received by or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment Event, as the case may be, less (b) the sum of:

 

(i)            the amount, if any, of all taxes paid or estimated to be payable by the Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event,

 

(ii)           the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of such Prepayment Event and (y) retained by the Borrower or any of the Restricted Subsidiaries, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in

 

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respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction,

 

(iii)          the amount of any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment Event, and

 

(iv)          reasonable and customary fees paid by the Borrower or a Restricted Subsidiary in connection with any of the foregoing,

 

in each case only to the extent not already deducted in arriving at the amount referred to in clause (a) above.

 

“ Net Income ” shall mean, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.

 

“ Non-Consenting Lender ” shall have the meaning provided in Section 13.7(b) .

 

“ Non-Defaulting Lender ” shall mean and include each Lender other than a Defaulting Lender.

 

“ Non-U.S. Lender ” shall mean any Agent or Lender that is not, for United States federal income tax purposes, (a) an individual who is a citizen or resident of the United States, (b) a corporation, partnership or entity treated as a corporation or partnership created or organized in or under the laws of the United States, or any political subdivision thereof, (c) an estate whose income is subject to U.S. federal income taxation regardless of its source or (d) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States persons have the authority to control all substantial decisions of such trust or a trust that has a valid election in effect under applicable U.S. Treasury regulations to be treated as a United States person.

 

“ Non-U.S. Participant ” shall mean any Participant that if it were a Lender would qualify as a Non-U.S. Lender.

 

“ Notice of Borrowing ” shall have the meaning provided in Section 2.3(a) .

 

“ Notice of Conversion or Continuation ” shall have the meaning provided in Section 2.6(a) .

 

“ Obligations ” shall mean any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such

 

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principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.

 

“ Officer ” shall mean the Chairman of the Board, the Chief Executive Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Borrower.

 

“ Officer’s Certificate ” shall mean a certificate signed on behalf of the Borrower by an Officer of the Borrower, who must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Borrower, that meets the requirements set forth in this Agreement.

 

“ Opinion of Counsel ” shall mean a written opinion from legal counsel who is acceptable to the Administrative Agent. The counsel may be an employee of or counsel to the Borrower or the Administrative Agent.

 

“ Optional Principal Redemption ” shall have the meaning provided in Section 5.1(b) .

 

“ Optional Principal Redemption Amount ” shall have the meaning provided in Section 5.1(b) .

 

“ Other Taxes ” shall mean any and all present or future stamp, registration, documentary or any other excise, property or similar taxes (including interest, fines, penalties, additions to tax and related expenses with regard thereto) arising from any payment made or required to be made under this Agreement or any other Loan Document or from the execution or delivery of, registration or enforcement of, consummation or administration of, or otherwise with respect to, this Agreement or any other Loan Document.

 

“ Overnight Rate ” shall mean, for any day the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative Agent, as the case may be, in accordance with banking industry rules on interbank compensation.

 

“ Participant ” shall have the meaning provided in Section 13.6(c) .

 

“ Patriot Act ” shall have the meaning provided in Section 13.18 .

 

“ Pension Act ” shall mean the Pension Protection Act of 2006, as it presently exists or as it may be amended from time to time.

 

“ Permitted Asset Swap ” shall mean the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the 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 9.8 hereof.

 

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“ Permitted Holders ” shall mean each of the Investors, members of management of the Borrower (or its direct or indirect parent) and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, such Investors, and members of management, collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Borrower or any of its direct or indirect parent companies. Any Person or group whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Agreement will thereafter, together with its Affiliates, constitute an additional Permitted Holder.

 

“ Permitted Investments ” shall mean:

 

(1)           any Investment in the Borrower or any of its Restricted Subsidiaries;

 

(2)           any Investment in cash and Cash Equivalents or Investment Grade Securities;

 

(3)           any Investment by the Borrower or any of its Restricted Subsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment:

 

(a)           such Person becomes a Restricted Subsidiary; or

 

(b)           such Person, in one transaction or a series of related transactions, is merged or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary,

 

and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;

 

(4)           any Investment in securities or other assets not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to the provisions described under Section 9.8 hereof or any other disposition of assets not constituting an Asset Sale;

 

(5)           any Investment existing on the Closing Date or made pursuant to a binding commitment as in effect on the Closing Date;

 

(6)            any Investment acquired by the Borrower or any of its Restricted Subsidiaries:

 

(a)           in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable; or

 

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(b)           as a result of a foreclosure by the Borrower or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

 

(7)           Hedging Obligations permitted under clause (10) of Section 9.7(b) hereof;

 

(8)           any Investment in a Similar Business having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (8) that are at that time outstanding, not to exceed (x) prior to the Interim Loan Conversion Date, $750.0 million and (y) thereafter, 2.5% of Total Assets, in each case at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

 

(9)           Investments the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of the Borrower or any of its direct or indirect parent companies; provided , however , that such Equity Interests will not increase the amount available for Restricted Payments under clause (3) of Section 9.5(a) hereof;

 

(10)         guarantees of Indebtedness permitted under Section 9.7 hereof;

 

(11)         any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of Section 9.9(b) hereof (except transactions described in clauses (2) , (5) and (9) of Section 9.9(b) hereof);

 

(12)         Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment;

 

(13)         additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (13) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed (x) prior to the Interim Loan Conversion Date, $600.0 million and (y) thereafter, 3.5% of Total Assets, in each case at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

 

(14)         Investments relating to a Receivables Subsidiary that, in the good faith determination of the Borrower, is necessary or advisable to effect any Receivables Facility;

 

(15)         advances to, or guarantees of Indebtedness of, employees not in excess of $50.0 million outstanding at any one time, in the aggregate;

 

(16)         loans and advances to officers, directors and employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices or to fund such Person’s purchase of Equity Interests of the Borrower or any direct or indirect parent company thereof;

 

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(17)         any Investment in any joint venture existing on the Closing Date to the extent contemplated by the organizational documents of such joint venture as in existence on the Closing Date;

 

(18)         any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;

 

(19)         any Investment arising in the ordinary course of business as a result of any Settlement, including Investments in and of Settlement Assets; and

 

(20)         Investments of assets made pursuant to any non-qualified deferred compensation plan sponsored by the Borrower or its Restricted Subsidiaries.

 

“ Permitted Liens ” shall mean, with respect to any Person:

 

(1)           pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;

 

(2)           Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each case for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

 

(3)           Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

 

(4)           Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;

 

(5)           minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and

 

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which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

(6)           Liens securing Indebtedness permitted to be incurred pursuant to clause (4) , (12) , (13) , (18) or (19) of Section 9.7(b) hereof; provided that (a) Liens securing Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred pursuant to clause (13) relate only to Refinancing Indebtedness that serves to refund or refinance Indebtedness, Disqualified Stock or Preferred Stock incurred under clause (4) or (12) of Section 9.7(b) hereof, (b) Liens securing Indebtedness permitted to be incurred pursuant to clause (18) extend only to the assets of Foreign Subsidiaries, (c) Liens securing Indebtedness permitted to be incurred pursuant to clause (19) are solely on acquired property or the assets of the acquired entity, as the case may be and (d) Liens securing Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred pursuant to clause (4) of Section 9.7(b) hereof extend only to the assets so financed, purchased, constructed or improved;

 

(7)           Liens existing on the Closing Date (other than Liens in favor of the lenders under the Senior Secured Credit Agreement);

 

(8)           Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided , however , such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided , further , however , that such Liens may not extend to any other property owned by the Borrower or any of its Restricted Subsidiaries;

 

(9)           Liens on property at the time the Borrower or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any of its Restricted Subsidiaries; provided , however , that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided , further , however , that the Liens may not extend to any other property owned by the Borrower or any of its Restricted Subsidiaries;

 

(10)         Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary permitted to be incurred in accordance with Section 9.7 hereof;

 

(11)         Liens securing Hedging Obligations so long as the related Indebtedness is, and is permitted to be under this Agreement, secured by a Lien on the same property securing such Hedging Obligations;

 

(12)         Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(13)         leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the

 

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business of the Borrower or any of its Restricted Subsidiaries and do not secure any Indebtedness;

 

(14)         Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business;

 

(15)         Liens in favor of the Borrower or any Guarantor;

 

(16)         Liens on equipment of the Borrower or any of its Restricted Subsidiaries granted in the ordinary course of business;

 

(17)         Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;

 

(18)         Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements), as a whole or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (6) , (7) , (8) and (9) ; provided , however , that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6) , (7) , (8) and (9) at the time the original Lien became a Permitted Lien under this Agreement, and (ii) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;

 

(19)         deposits made in the ordinary course of business to secure liability to insurance carriers;

 

(20)         other Liens securing obligations incurred in the ordinary course of business which obligations do not exceed $100.0 million at any one time outstanding;

 

(21)         Liens securing judgments for the payment of money not constituting an Event of Default under clause (f) under Section 11.1 hereof so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;

 

(22)         Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(23)         Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, and (iii) in favor of banking institutions

 

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arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

 

(24)         Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 9.7 hereof; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreements;

 

(25)         Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

 

(26)         Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

 

(27)         Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business; and

 

(28)         Settlement Liens.

 

For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.

 

“ Person ” shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

 

“ PIK Interest ” shall have the meaning provided in Section 2.8(a)(ii) .

 

“ PIK Interest Amount ” shall mean the aggregate principal amount of all increases in outstanding principal amount of PIK Notes (as defined in the Senior Refinancing Indenture) and issuances of additional “PIK Notes” (as defined in the Senior Refinancing Indenture) in connection with an election by the Borrower to pay interest on the PIK Notes in kind.

 

“ PIK Interest Termination Date ” shall have the meaning provided in Section 2.8(a)(ii) .

 

“ Plan ” shall mean any multiemployer or single-employer plan, as defined in Section 4001 of ERISA and subject to Title IV of ERISA, that is or was within any of the preceding six plan years maintained or contributed to by (or to which there is or was an obligation to contribute or to make payments to) the Borrower or an ERISA Affiliate.

 

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“ Platform ” shall have the meaning provided in Section 13.17(b) .

 

“ Preferred Stock ” shall mean any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up.

 

“ Prepayment Event ” shall mean any Debt Incurrence Prepayment Event.

 

“ prime rate ” shall mean the “prime rate” referred to in the definition of “ABR.”

 

“ Qualified Proceeds ” shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business; provided that the fair market value of any such assets or Capital Stock shall be determined by the Borrower in good faith.

 

“ Rating Agencies ” shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the applicable security or other investment publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Borrower which shall be substituted for Moody’s or S&P or both, as the case may be.

 

“ Real Estate ” shall mean land, buildings and improvements owned or leased by the Borrower or any Guarantors, but excluding all operating fixtures and equipment, whether or not incorporated into improvements.

 

“ Receivables Facility ” shall mean any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Borrower or any of its Restricted Subsidiaries purports to sell its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts receivable to a Person that is not a Restricted Subsidiary or by borrowing from such Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such Person.

 

“ Receivables Fees ” shall mean distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with any Receivables Facility.

 

“ Receivables Subsidiary ” shall mean any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto.

 

“ Refinancing Indebtedness ” shall have the meaning provided in Section 9.7(b)(13) .

 

“ Register ” shall have the meaning provided in Section 13.6(b)(iv) .

 

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“ Registration Rights Agreement ” shall mean any registration rights agreement related to the Senior Notes or the Senior Subordinated Notes, as may be executed in connection with the refinancing or exchange of the Senior Interim Loans and/or the Senior Term Loans, and the Senior Subordinated Interim Loans and/or the Senior Subordinated Term Loans, respectively, by and among the Borrower, the Guarantors and the financial institutions parties thereto, as such agreement may be amended, modified or supplemented from time to time and, with respect to any additional notes issued pursuant to the Indentures, one or more registration rights agreements among the Borrower, the Guarantors and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Borrower and the Guarantors to the holders of such additional notes to register such additional notes under the Securities Act.

 

“ Regulation T ” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

“ Regulation U ” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

“ Regulation X ” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

“ Rejection Notice ” shall have the meaning provided in Section 5.2(h) .

 

“ Related Business Assets ” shall mean assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Borrower or a Restricted Subsidiary in exchange for assets transferred by the Borrower or a Restricted Subsidiary will 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 become a Restricted Subsidiary.

 

“ Related Parties ” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees and advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.

 

“ Reportable Event ” shall mean an event described in Section 4043 of ERISA and the regulations thereunder, other than any event as to which the thirty day notice period has been waived.

 

“ Required Lenders ” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of (i) the Loans (excluding the Loans of Defaulting Lenders) in the aggregate at such date, or (ii) after issuance of any Senior Notes, a majority of the outstanding principal amount of the Loans (excluding the Loans of Defaulting Lenders) and the Senior Notes in the aggregate at such date, voting as a single class.

 

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“ Requirement of Law ” shall mean, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or assets or to which such Person or any of its property or assets is subject.

 

“ Restricted Investment ” shall mean an Investment other than a Permitted Investment.

 

“ Restricted Subsidiary ” shall mean, at any time, any direct or indirect Subsidiary of the Borrower (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided , however , that upon an Unrestricted Subsidiary’s ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.”

 

“ S&P ” shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.

 

“ Sale and Lease Back Transaction ” shall mean any arrangement providing for the leasing by the Borrower or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to a third Person in contemplation of such leasing.

 

“ SEC ” shall mean the Securities and Exchange Commission or any successor thereto.

 

“ Second Commitment ” shall have the meaning provided in Section 9.8(b) .

 

“ Section 9.1 Financials ” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(i) or (ii) .

 

“ Secured Indebtedness ” shall mean any Indebtedness of the Borrower or any of its Restricted Subsidiaries secured by a Lien.

 

“ Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

“ Securitization ” shall mean a public or private offering by a Lender or any of its Affiliates or their respective successors and assigns of securities or notes which represent an interest in, or which are collateralized, in whole or in part, by the Loans and the Lender’s rights under the Loan Documents.

 

“ Senior Cash Pay Fixed Rate ” shall mean 9.875% per annum .

 

“ Senior Cash Pay Loans ” shall mean Senior Interim Cash Pay Loans and/or Senior Cash Pay Term Loans, as the context requires.

 

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“ Senior Cash Pay Notes ” shall mean senior notes due 2015, to be issued in connection with the exchange for the Senior Cash Pay Term Loans under the Senior Refinancing Indenture, in an aggregate principal amount of up to $3,750,000,000 (less the amount of any Senior Interim Cash Pay Loans and Senior Cash Pay Term Loans that remain outstanding after the issuance of the Senior Cash Pay Notes), together with interest, fees and all other amounts payable in connection therewith.

 

“ Senior Cash Pay Term Loans ” shall have the meaning provided in Section 2.14(a)(i) .

 

“ Senior Indebtedness ” shall mean:

 

(1)           all Indebtedness of the Borrower or any Guarantor outstanding under the Senior Secured Credit Agreement, this Agreement and related Guarantees (including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the Borrower or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether or not a claim for post filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification amounts, penalties, and other amounts (whether existing on the Closing Date or thereafter created or incurred) and all obligations of the Borrower or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other similar instruments;

 

(2)           all Hedging Obligations (and guarantees thereof) owing to a Lender or any Affiliate of such Lender (or any Person that was a Lender or an Affiliate of such Lender at the time the applicable agreement giving rise to such Hedging Obligation was entered into); provided that such Hedging Obligations are permitted to be incurred under the terms of this Agreement;

 

(3)           any other Indebtedness of the Borrower or any Guarantor permitted to be incurred under the terms of this Agreement, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to Indebtedness outstanding under the Senior Secured Credit Agreement, this Agreement or any related Guarantee; and

 

(4)           all Obligations with respect to the items listed in the preceding clauses (1) , (2) and (3);

 

provided , however , that Senior Indebtedness shall not include:

 

(a)           any obligation of such Person to the Borrower or any of its Subsidiaries;

 

(b)           any liability for federal, state, local or other taxes owed or owing by such Person;

 

(c)           any accounts payable or other liability to trade creditors arising in the ordinary course of business;

 

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(d)           any Indebtedness or other Obligation of such Person which is subordinate or junior in any respect to any other Indebtedness or other Obligation of such Person; or

 

(e)           that portion of any Indebtedness which at the time of incurrence is incurred in violation of this Agreement.

 

“ Senior Interim Cash Pay Loan ” shall have the meaning provided in Section 2.1(a)(i) .

 

“ Senior Interim Cash Pay Loan Commitment ” shall mean (a) in the case of each Lender that is a Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s “Senior Interim Cash Pay Loan Commitment” and (b) in the case of any Lender that becomes a Lender after the date hereof, the amount specified as such Lender’s “Senior Interim Cash Pay Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Senior Interim Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Senior Interim Cash Pay Loan Commitments as of the Closing Date is $3,750,000,000.

 

“ Senior Interim Cash Pay Loans Requested Amount ” shall have the meaning provided in Section 2.3(a) .

 

“ Senior Interim Loan Commitment ” shall mean, with respect to each Lender, such Lender’s Senior Interim Cash Pay Loan Commitment and Senior Interim PIK Loan Commitment.

 

“ Senior Interim Loans ” shall mean the Senior Interim Cash Pay Loans and/or Senior Interim PIK Loans, as the context requires.

 

“ Senior Interim PIK Loan ” shall have the meaning provided in Section 2.1(a)(ii) .

 

“ Senior Interim PIK Loan Commitment ” shall mean (a) in the case of each Lender that is a Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s “Senior Interim PIK Loan Commitment” and (b) in the case of any Lender that becomes a Lender after the date hereof, the amount specified as such Lender’s “Senior Interim PIK Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Senior Interim Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Senior Interim PIK Loan Commitments as of the Closing Date is $2,750,000,000.

 

“ Senior Interim PIK Loans Requested Amount ” shall have the meaning provided in Section 2.3(a) .

 

“ Senior Notes ” shall mean Senior Cash Pay Notes and/or Senior PIK Notes, as the context requires, and for purposes of Section 5.2, any senior debt securities issued in connection with the refinancing of the Senior Interim Loans.

 

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“ Senior PIK Fixed Rate ” shall mean 10.550% per annum .

 

“ Senior PIK Loans ” shall mean Senior Interim PIK Loans and/or Senior PIK Term Loans, as the context requires.

 

“ Senior PIK Notes ” shall mean senior PIK notes due 2015, to be issued in connection with the exchange for the Senior PIK Term Loans under the Senior Refinancing Indenture, in an aggregate principal amount of up to $2,750,000,000 (less the amount of any Senior Interim PIK Loans and Senior PIK Term Loans that remain outstanding after the issuance of the Senior PIK Notes), together with interest (including any PIK Interest Amount), fees and all other amounts payable in connection therewith.

 

“ Senior PIK Term Loans ” shall have the meaning provided in Section 2.14(a)(ii) .

 

“ Senior Refinancing Indenture ” shall mean the indenture substantially in the form attached as Exhibit B to be entered into in connection with the exchange of the Senior Term Loans, among the Borrower, the Guarantors and a trustee, pursuant to which the Senior Notes shall be issued, as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith.

 

“ Senior Refinancing Registration Rights Agreement ” shall mean the registration rights agreement substantially in the form attached as Exhibit C to be entered into in connection with the exchange of the Senior Term Loans, among the Borrower, the Guarantors and the Administrative Agent, relating to rights given by the Borrower and the Guarantors to the holders of Senior Notes to register such notes under the Securities Act.

 

“ Senior Secured Closing Date Term Loans ” shall have the meaning provided in the recitals to this Agreement.

 

“ Senior Secured Credit Agreement ” shall have the meaning provided in the recitals to this Agreement.

 

“ Senior Secured Delayed Draw Term Loans ” shall have the meaning provided in the recitals to this Agreement.

 

“ Senior Secured Revolving Credit Loans ” shall have the meaning provided in the recitals to this Agreement.

 

“ Senior Subordinated Interim Loan Agreement ” shall have the meaning provided in the recitals to this Agreement.

 

“ Senior Subordinated Interim Loans ” shall mean the Senior Subordinated Interim Loans defined in the recitals to this Agreement.

 

“ Senior Subordinated Notes ” shall mean senior subordinated notes due 2016, to be issued in exchange for the Senior Subordinated Term Loans under the Senior Subordinated

 

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Refinancing Indenture, in an aggregate principal amount of up to $2,500,000,000 (less the amount of any Senior Subordinated Interim Loans and Senior Subordinated Term Loans that remain outstanding after the issuance of the Senior Subordinated Notes), together with interest, fees and all other amounts payable in connection therewith.

 

“ Senior Subordinated Refinancing Indenture ” shall mean the indenture to be entered into in connection with the exchange of the Senior Subordinated Term Loans, among the Borrower, the Guarantors and a trustee, pursuant to which the Senior Subordinated Notes shall be issued, as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith.

 

“ Senior Subordinated Term Loans ” shall mean term loans outstanding under the Senior Subordinated Interim Loan Agreement after conversion, on the Interim Loan Conversion Date, of the Senior Subordinated Interim Loans outstanding on such date.

 

“ Senior Term Loans ” shall mean Senior Cash Pay Term Loans and/or Senior PIK Term Loans, as the context requires.

 

“ Settlement ” shall mean the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.

 

“ Settlement Asset ” shall mean any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.

 

“ Settlement Indebtedness ” shall mean any payment or reimbursement obligation in respect of a Settlement Payment.

 

“ Settlement Lien ” shall mean any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).

 

“ Settlement Payment ” shall mean the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement.

 

“ Settlement Receivable ” shall mean any general intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.

 

“ Significant Subsidiary ” shall mean any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1 02 of Regulation S X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Closing Date.

 

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“ Similar Business ” shall mean any business conducted or proposed to be conducted by the Borrower and its Restricted Subsidiaries on the Closing Date or any business that is similar, reasonably related, incidental or ancillary thereto.

 

“ Solvent ” shall mean, with respect to any Person, that as of the Closing Date, (a) (i) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (ii) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date; and (iii) such Person has not incurred and does not intend to incur, or believe that it will incur, debts including current obligations beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (b) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

 

“ Sponsor Management Agreement ” shall mean the management agreement between certain of the management companies associated with the Investors and the Borrower.

 

“ Stock ” shall mean shares of capital stock or shares in the capital, as the case may be (whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as the case may be), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or non-voting.

 

“ Stock Equivalents ” shall mean all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable.

 

“ Subordinated Indebtedness ” shall mean, with respect to the Senior Interim Loans,

 

(1)           any Indebtedness of the Borrower which is by its terms subordinated in right of payment to the Senior Interim Loans, and

 

(2)           any Indebtedness of any Guarantor which is by its terms subordinated in right of payment to the Guarantee of such entity of the Senior Interim Loans.

 

“ Subsidiary ” shall mean, with respect to any Person:

 

(1)           any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person

 

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or one or more of the other Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such Person at such time; and

 

(2)            any partnership, joint venture, limited liability company or similar entity of which

 

(x)            more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and

 

(y)           such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

 

“ Successor Borrower ” shall have the meaning provided in Section 9.14(a)(1) .

 

“ Syndication Agent ” shall mean Credit Suisse together with its Affiliates, as syndication agent for the Lenders under this Agreement and the other Loan Documents.

 

“ Taxes ” shall mean any and all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings or other similar charges imposed by any Governmental Authority whether computed on a separate, consolidated, unitary, combined or other basis and any interest, fines, penalties or additions to tax with respect to the foregoing.

 

“ Test Period ” shall mean, for any determination under this Agreement, the four consecutive fiscal quarters of the Borrower then last ended.

 

“ Total Assets ” shall mean the total assets of the Borrower and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of the Borrower or such other Person as may be expressly stated (excluding settlement assets, as shown on such balance sheet).

 

“ Total Credit Exposure ” shall mean, at any date, the aggregate outstanding principal amount of all Loans at such date.

 

“ Transaction Expenses ” shall mean any fees or expenses incurred or paid by the Borrower or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.

 

“ Transactions ” shall mean, collectively, the transactions contemplated by this Agreement, the Senior Secured Credit Agreement, the Senior Subordinated Interim Loan Agreement, the Merger, the Equity Investments, the Debt Repayment and any repayment, repurchase, prepayment or defeasance of Indebtedness of the Borrower or any of its Subsidiaries in connection therewith.

 

“ Transferee ” shall have the meaning provided in Section 13.6(e) .

 

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“ Trustee ” shall have the meaning provided in Section 2.14(b)(iv) .

 

“ Type ” shall mean as to any Loan, its nature as an ABR Loan or a LIBOR Loan.

 

“ Unfunded Current Liability ” of any Plan shall mean the amount, if any, by which the Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87 (“ SFAS 87 ”)) under the Plan as of the close of its most recent plan year, determined in accordance with SFAS 87 as in effect on the date hereof, exceeds the fair market value of the assets allocable thereto.

 

“ Unrestricted Subsidiary ” shall mean:

 

(1)            any Subsidiary of the Borrower which at the time of determination is an Unrestricted Subsidiary (as designated by the Borrower, as provided below); and

 

(2)            any Subsidiary of an Unrestricted Subsidiary.

 

The Borrower may designate any Subsidiary of the Borrower (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Borrower or any Subsidiary of the Borrower (other than solely any Subsidiary of the Subsidiary to be so designated); provided that

 

(1)            any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for the election of directors or Persons performing a similar function are owned, directly or indirectly, by the Borrower;

 

(2)            such designation complies with Section 9.5 hereof; and

 

(3)            each of:

 

(a)           the Subsidiary to be so designated; and

 

(b)           its Subsidiaries

 

has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Borrower or any Restricted Subsidiary.

 

The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation, no Default shall have occurred and be continuing and either:

 

(1)            the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test described in Section 9.7(a) hereof; or

 

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(2)           the Fixed Charge Coverage Ratio for the Borrower and its Restricted Subsidiaries would be greater than such ratio for the Borrower and its Restricted Subsidiaries immediately prior to such designation,

 

in each case on a pro forma   basis taking into account such designation.

 

Any such designation by the Borrower shall be notified by the Borrower to the Administrative Agent by promptly filing with the Administrative Agent a copy of the resolution of the board of directors of the Borrower or any committee thereof giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing provisions.

 

“ U.S. ” or “ United States ” shall mean the United States of America.

 

“ U.S. Lender ” shall have the meaning provided in Section 5.4(i) .

 

“ Voting Stock ” of any Person as of any date shall mean the Capital Stock of such Person that is at such date entitled to vote in the election of the board of directors of such Person.

 

“ Weighted Average Life to Maturity ” shall mean, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:

 

(1)           the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment; by

 

(2)           the sum of all such payments.

 

“ Wholly-Owned Subsidiary ” of any Person shall mean a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person.

 

1.2.          Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)           The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)           The words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

(c)           Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

 

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(d)           The term “including” is by way of example and not limitation.

 

(e)           The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(f)            In the computation of periods of time from a specified date to a later specified date, the word “from” shall mean “from and including”; the words “to” and “until” each shall mean “to but excluding”; and the word “through” shall mean “to and including”.

 

(g)           Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

(h)           To the extent any provision of the Senior Refinancing Indenture is deemed to be incorporated and set forth in this Agreement, (i) any reference to the “Issuer” or the “Company” in the Senior Refinancing Indenture shall be deemed to be a reference to the Borrower, (ii) any reference to a “Holder” in the Senior Refinancing Indenture shall be deemed to be a reference to a Lender, (iii) any reference to the “Trustee” in the Senior Refinancing Indenture shall be deemed to be a reference to the Administrative Agent, (iv) any reference to the “Notes” in the Senior Refinancing Indenture shall be deemed to be a reference to the Loans and (v) any reference to “this Indenture” in the Senior Refinancing Indenture shall be deemed to be a reference to this Agreement and the other Loan Documents, in each case as the context may require.

 

1.3.          Accounting Terms . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP.

 

1.4.          [ Reserved ]

 

1.5.          References to Agreements, Laws, Etc . Unless otherwise expressly provided herein, (a) references to organizational documents, agreements (including the Loan Documents) and other Contractual Requirements shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendment and restatements, extensions, supplements and other modifications are permitted by any Loan Document; and (b) references to any Requirement of Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law.

 

1.6.          [Reserved]

 

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SECTION 2.           Amount and Terms of Credit

 

2.1.          Commitments .

 

(a)           Subject to and upon the terms and conditions herein set forth,

 

(i)            each Lender having a Senior Interim Cash Pay Loan Commitment severally agrees to make a loan or loans (each a “ Senior Interim Cash Pay Loan ”) in a single draw on the Closing Date to the Borrower in Dollars, which Senior Interim Cash Pay Loans shall not exceed for any such Lender the Senior Interim Cash Pay Loan Commitment of such Lender and in the aggregate shall not exceed $3,750,000,000; and

 

(ii)           each Lender having a Senior Interim PIK Loan Commitment severally agrees to make a loan or loans (each a “ Senior Interim PIK Loan ”) in a single draw on the Closing Date to the Borrower in Dollars, which Senior Interim PIK Loans shall not exceed for any such Lender the Senior Interim PIK Loan Commitment of such Lender and in the aggregate shall not exceed $2,750,000,000.

 

Such Senior Interim Loans (i) shall be incurred and maintained (except as provided in Section 2.6 and Section 2.10 ) as LIBOR Loans, (ii) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid, may not be reborrowed, (iii) shall not exceed for any such Lender the Senior Interim Loan Commitment of such Lender and (iv) shall not exceed in the aggregate the Total Senior Interim Loan Commitment.

 

On the applicable interest payment dates with respect to Borrowings under Senior PIK Loans closest to March 31, 2015, the Borrower shall repay in full in Dollars an amount of Senior PIK Loans equal to the product of (x) $50,000,000 and (y) the percentage equal to the aggregate principal amount of outstanding Senior PIK Loans divided by the aggregate principal amount of outstanding Senior PIK Loans and Senior PIK Notes on such date, as determined in good faith by the Borrower  rounded to the nearest $1,000. Prepayments of Senior PIK Loans made pursuant to the preceding sentence shall be made on a pro rata basis based on the aggregate principal amount of Senior PIK Loans.

 

On the Maturity Date, the Borrower shall repay all then unpaid Loans in full in Dollars.

 

(b)           Each Lender may at its option make any LIBOR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan, provided that (A) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (B) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).

 

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2.2.          Maximum Number of Borrowings . More than one Borrowing may be incurred on any date, provided that at no time shall there be outstanding more than 30 Borrowings of LIBOR Loans under this Agreement.

 

2.3.          Notice of Borrowing .

 

(a)           The Borrower shall give the Administrative Agent at the Administrative Agent’s Office prior to 9:00 a.m. (New York City time) at least two Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of the Borrowing of the Senior Interim Loans. Such notice (a “ Notice of Borrowing ”) shall specify (i) the aggregate principal amount of the Senior Interim Loans to be borrowed, $3,750,000,000 of which shall be allocated to the Senior Interim Cash Pay Loans (the “ Senior Interim Cash Pay Loans Requested Amount ”) (such Senior Interim Cash Pay Loans Requested Amount not to exceed the aggregate Senior Interim Cash Pay Loan Commitments of all Lenders) and $2,750,000,000 of which shall be allocated to the Senior Interim PIK Loans (the “ Senior Interim PIK Loans Requested Amount ”) (such Senior Interim PIK Loans Requested Amount not to exceed the aggregate Senior Interim PIK Loan Commitments of all Lenders), (ii) the date of the Borrowing (which shall be the Closing Date) and (iii) the Interest Period to be initially applicable thereto. The Administrative Agent shall promptly give each Lender written notice (or telephonic notice promptly confirmed in writing) of the proposed Borrowing of Senior Interim Loans, of such Lender’s proportionate share thereof and of the other matters covered by the related Notice of Borrowing.

 

(b)           Without in any way limiting the obligation of the Borrower to confirm in writing any notice it may give hereunder by telephone, the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower.

 

2.4.          Disbursement of Funds .

 

(a)           No later than 2:00 p.m. (New York City time) on the date specified in the Notice of Borrowing, each Lender will make available its pro rata portion, if any, of each Borrowing requested to be made on such date in the manner provided below; provided that such funds may be made available at such earlier time as may be agreed among the Lenders, the Borrower and the Administrative Agent for the purpose of consummating the Transactions.

 

(b)           Each Lender shall make available all amounts it is to fund to the Borrower under the Borrowing for its applicable Commitments, and in immediately available funds to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will make available to the Borrower, by depositing to an account designated by the Borrower to the Administrative Agent the aggregate of the amounts so made available in Dollars. Unless the Administrative Agent shall have been notified by any Lender prior to the date of the Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on the date of the Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower a corresponding amount. If such

 

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corresponding amount is not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made available such amount to the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent in Dollars. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if paid by such Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable rate of interest or fees, calculated in accordance with Section 2.8 , for the respective Loans.

 

(c)           Nothing in this Section 2.4 shall be deemed to relieve any Lender from its obligation to, fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).

 

2.5.          Repayment of Loans; Evidence of Debt .

 

(a)           The Borrower shall repay to the Administrative Agent, for the benefit of the Lenders, on the Term Loan Maturity Date, the then-outstanding Loans, in Dollars.

 

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

 

(c)           The Administrative Agent shall maintain the Register pursuant to Section 13.6(b) , and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder, the Type of each Loan made and the Interest Period, if any, applicable thereto, (ii) the amount of any principal (including any PIK Interest Amounts) or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

(d)           The entries made in the Register and accounts and subaccounts maintained pursuant to clauses (b) and (c) of this Section 2.5 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided , however , that the failure of any Lender or the Administrative Agent to maintain such account, such Register or subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

 

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2.6.          Conversions and Continuations .

 

(a)           Subject to the penultimate sentence of this clause (a) , (x) the Borrower shall have the option, subject to Section 2.10 , on any Business Day to convert all or a portion equal to at least $5,000,000 of the outstanding principal amount of one Type into a Borrowing or Borrowings of another Type and (y) the Borrower shall have the option on any Business Day to continue the outstanding principal amount of any LIBOR Loans as LIBOR Loans for an additional Interest Period, provided that (i) ABR Loans may not be converted into LIBOR Loans if a Default or Event of Default is in existence on the date of the conversion and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such conversion, (ii) LIBOR Loans may not be continued as LIBOR Loans for an additional Interest Period if a Default or Event of Default is in existence on the date of the proposed continuation and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation and (iii) Borrowings resulting from conversions pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2 . Each such conversion or continuation shall be effected by the Borrower by giving the Administrative Agent at the Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing), in the case of a continuation of or conversion to LIBOR Loans (other than in the case of a notice delivered on the Closing Date pursuant to clause (c), which shall be deemed to be effective on the Closing Date) or (ii) one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) in the case of a conversion into ABR Loans (each, a “ Notice of Conversion or Continuation ”) specifying the Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if such Loans are to be converted into or continued as LIBOR Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall give each