REFINANCING AMENDMENT NO. 2 (this “Second Amendment”) dated as of September 27, 2021, to the Amended and Restated Credit and Guaranty Agreement dated as of October 3, 2017 (as amended by that certain Refinancing Amendment No. 1, dated as of December...

Exhibit 10.1

EXECUTION VERSION

REFINANCING AMENDMENT NO. 2 (this “Second Amendment”) dated as of September 27, 2021, to the Amended and Restated Credit and Guaranty Agreement dated as of October 3, 2017 (as amended by that certain Refinancing Amendment No. 1, dated as of December 17, 2018, and as may be further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”), among HOLOGIC, INC., a Delaware corporation (the “Company”), HOLOGIC GGO 4 LTD. (the “UK Borrower”), certain subsidiaries of the Company from time to time party thereto as Designated Borrowers, the Guarantors from time to time party thereto, the lenders from time to time party thereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative Agent”).

WHEREAS, each Person that agrees to make 2021 Refinancing Term Loans (as defined below) (collectively, the “2021 Refinancing Term Lenders”) will make 2021 Refinancing Term Loans to the Company on the Second Amendment Effective Date (as defined below) (the “2021 Refinancing Term Loans”) in an amount equal to its 2021 Refinancing Term Commitment (defined below);

WHEREAS, each Person that agrees to make 2021 Refinancing Revolving Credit Commitments (as defined below) available to the Company (collectively, the “2021 Refinancing Revolving Credit Lenders”) will make such 2021 Refinancing Revolving Credit Commitments available to the Company on the Second Amendment Effective Date (as defined below);

WHEREAS, the Company has requested an amendment to the Credit Agreement that would effect the modifications to the Credit Agreement set forth herein, and each Lender party hereto consents to this Second Amendment;

WHEREAS, BofA Securities, Inc. (“BofA Securities”), ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇▇▇ Sachs Bank USA, JPMorgan Chase Bank,. N.A., MUFG Bank, Ltd. and Citibank, N.A. have been appointed as the Lead Arrangers (as defined below) with respect to this Second Amendment; and

WHEREAS, this Second Amendment includes amendments of the Credit Agreement that are subject to the approval of the Required Lenders (and certain amendment(s) that require approval of all of the Lenders), and that, in each case, will become effective on the Second Amendment Effective Date on the terms and subject to the conditions set forth herein.

Accordingly, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Credit Agreement as amended hereby (the “Amended Credit Agreement”).

SECTION 2. Refinancing Transactions.

(a)     Subject to the terms and conditions set forth herein, each 2021 Refinancing Term Lender severally agrees to make a 2021 Refinancing Term Loan to the Company on the Second Amendment Effective Date in a principal amount equal to its 2021 Refinancing Term Commitment, which amount shall be made available to the Administrative Agent in immediately available funds in accordance with the Credit Agreement. The “2021 Refinancing Term Commitment” of each 2021 Refinancing Term Lender will be the amount set forth opposite such 2021 Refinancing Term Lender’s name on Schedule 1 hereto. On the

Second Amendment Effective Date, the 2021 Refinancing Term Loans shall replace or refinance in full the 2018 Refinancing Term Loans outstanding on the Second Amendment Effective Date (immediately prior to the refinancing of the 2018 Refinancing Term Loans contemplated by this Second Amendment (the “Refinancing”)) (the “Existing Term Loans”). Each Lender party hereto and the Administrative Agent hereby acknowledge that (i) the Company hereby provides notice under Section 2.19 of the Credit Agreement of its request for 2021 Refinancing Term Loans to refinance or replace in full the Existing Term Loans and (ii) all notice requirements set forth in Section 2.19 of the Credit Agreement with respect to the Refinancing have been satisfied. For the avoidance of doubt, there shall be no amount payable under Section 3.05(a) of the Credit Agreement in connection with the Refinancing.

(b)     Subject to the terms and conditions set forth herein, each 2021 Refinancing Revolving Credit Lender agrees to make 2021 Refinancing Revolving Credit Commitments available to the Company on the Second Amendment Effective Date. The “2021 Refinancing Revolving Credit Commitment” of each 2021 Refinancing Revolving Credit Lender will be the amount set forth opposite such 2021 Refinancing Revolving Credit Lender’s name on Schedule 1 hereto. Immediately upon the Second Amendment becoming effective on the Second Amendment Effective Date, the 2021 Refinancing Revolving Credit Commitments shall replace in full the Revolving Credit Commitments under the 2018 Revolving Credit Facility. The Administrative Agent may take whatever administrative actions it deems necessary and appropriate to reflect the foregoing in the Register.

(c)     On and after the Second Amendment Effective Date, each reference in the Loan Documents to “Term Loans” shall be deemed to be a reference to and include the 2021 Refinancing Term Loans made or deemed made (including by replacement) hereunder, and each reference to “Lenders” shall be deemed to include the 2021 Refinancing Term Lenders. Notwithstanding the foregoing but subject to the last sentence of Section 2(a), the provisions of the Credit Agreement with respect to indemnification, confidentiality, reimbursement of costs and expenses, increased costs and break funding payments shall continue in full force and effect with respect to, and for the benefit of, each Term Lender in respect of such Lender’s Existing Term Loans.

SECTION 3. Amendments to the Credit Agreement. Each of the parties hereto agrees that, effective on the Second Amendment Effective Date, the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.

SECTION 4. Amendments to the Pledge and Security Agreement. Each of the parties hereto agrees that, effective on the Second Amendment Effective Date, the Pledge and Security Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Pledge and Security Agreement attached as Exhibit B hereto.

SECTION 5. Representations and Warranties. To induce the other parties hereto to enter into this Second Amendment, each Loan Party represents and warrants to each other party hereto, on and as of the Second Amendment Effective Date, that the following statements are true and correct:

(a)     The execution, delivery and performance of this Second Amendment have been duly authorized by all necessary action on the part of each Loan Party. This Second Amendment has been duly executed and delivered by each Loan Party and is the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

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(b)     The representations and warranties of the Company and each other Loan Party contained in Article 5 of the Credit Agreement or any other Loan Document, or which are contained in any document furnished in connection herewith or therewith, shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified by materiality or Material Adverse Effect, in all respects) on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date, and except that for purposes of this Section 5(b), the representations and warranties contained in Sections 5.08(a) and (b) shall be deemed to refer to the then-most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively.

(c)     As of the Second Amendment Effective Date, after giving effect to this Second Amendment, no Default shall exist or would result from the consummation of the transactions contemplated hereby.

SECTION 6. Second Amendment Effective Date.

(a)     This Second Amendment shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following conditions shall have been satisfied or waived by the 2021 Refinancing Term Lenders and the 2021 Refinancing Revolving Credit Lenders:

(i)    the Administrative Agent shall have received counterparty signature pages of this Second Amendment from each of the Borrower, each Guarantor and each Lender;

(ii)    the Administrative Agent shall have received (A) sufficient copies of each Organizational Document of each Loan Party, as applicable, and, to the extent applicable, certified as of the Second Amendment Effective Date or a recent date prior thereto by the appropriate Governmental Authority; (B) signature and incumbency certificates of the officers of such Persons executing the Loan Documents on behalf of each Loan Party; (C) copies of resolutions of the Board of Directors or similar governing body of each Loan Party approving and authorizing the execution, delivery and performance of this Second Amendment and the other Loan Documents executed in connection with the Second Amendment to which it is a party or by which it or its assets may be bound as of the Second Amendment Effective Date, certified as of the Second Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (D) other than with respect to the U.K. Borrower, a good standing certificate from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, dated as of the Second Amendment Effective Date or a recent date prior thereto and (E) to the extent requested by the Administrative Agent in respect of the U.K. Borrower, (i) copies of resolutions of its shareholders approving the terms of, and the transactions contemplated by this Second Amendment and (ii) a certificate signed by a Responsible Officer of the U.K. Borrower certifying that the U.K. Borrower Sublimit would not cause any borrowing or similar limit binding on it to be exceeded;

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(iii)    the Administrative Agent shall have received a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, dated as of the Second Amendment Effective Date, in a form consistent with the opinion delivered by ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP on the First Amendment Effective Date;

(iv)    the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Company certifying (a) that the conditions specified in Sections 5(b) and (c) have been satisfied and (b) that there has been no event or circumstance since September 26, 2020 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;

(v)    Concurrently with the making of the 2021 Refinancing Term Loans, (a) the entire aggregate principal amount of the 2018 Refinancing Term Loans and (b) all accrued interest, fees and other amounts accrued immediately prior to this Second Amendment becoming effective in connection therewith shall have been paid in full and all Interest Periods in respect thereof shall have been terminated;

(vi)    Concurrently with the availability of the 2021 Revolving Credit Facility, (i) the Revolving Credit Commitments in effect immediately prior to this Second Amendment becoming effective shall have been terminated and the entire aggregate principal amount of the all Revolving Credit Loans outstanding (if any) immediately prior to this Second Amendment becoming effective shall have been paid in full and (ii) all accrued interest, fees and other amounts accrued prior to this Second Amendment becoming effective in connection therewith shall have been paid in full and all Interest Periods in respect thereof shall have been terminated;

(vii)    Any fees required to be paid pursuant to the Fee Letter on or before the Second Amendment Effective Date shall have been paid by the Company to the Administrative Agent on the Second Amendment Effective Date;

(viii)    The Company shall have delivered a Committed Loan Notice with respect to the 2021 Refinancing Term Loans, and a notice of prepayment with respect to the Existing Term Loans, in each case, in accordance with the Credit Agreement;

(ix)     The Company shall have paid all fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (it is hereby expressly acknowledged and agreed that any fees paid pursuant to this clause (ix) shall be paid by the Company to the Administrative Agent on the Second Amendment Effective Date);

(x)    The Loan Parties shall have provided the documentation and other information to the Administrative Agent and Lenders that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, to the extent the Company shall have received written requests therefor at least three (3) Business Days prior to the Second Amendment Effective Date; and

(xi)    The conditions specified in Section 2.19 of the Credit Agreement with respect to the Refinancing shall have been satisfied (it being understood and agreed that, as of the date hereof, such conditions shall be deemed to be satisfied).

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(b)     Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in Section 6(a) hereof, each Lender that has signed this Second Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Second Amendment Effecitve Date specifying its objection thereto.

(c)     The Second Amendment Effective Date shall not occur if any of the conditions set forth or referred to in this Section 6 has not been satisfied or waived in accordance with Section 10.01 of the Credit Agreement at or prior to 5:00 p.m., New York City time, on September 27, 2021 (it being understood that any such failure of the Second Amendment Effective Date to occur by such date will not affect any rights or obligations of any Person under the existing Credit Agreement). The Administrative Agent shall promptly notify the Company and the Lenders of the Second Amendment Effective Date.

SECTION 7. Effect of Amendment.

(a)     Except as expressly set forth herein, this Second Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or Agents under the existing Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the existing Credit Agreement or any other provision of the existing Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Except as expressly set forth herein, nothing herein shall be deemed a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.

(b)     The parties hereto acknowledge and agree that this Second Amendment and the other Loan Documents executed and delivered in connection with this Second Amendment do not constitute a novation or termination of any of the Obligations .

(c)     From and after the Second Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the Credit Agreement in any other Loan Document shall be deemed a reference to the Credit Agreement as amended hereby. From and after the Second Amendment Effective Date, each reference in the Loan Documents to the “Pledge and Security Agreement” shall be deemed a reference to the Pledge and Security Agreement as amended hereby. This Second Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

SECTION 8. Reaffirmation. Notwithstanding the effectiveness of this Second Amendment and the transactions contemplated hereby, (i) each Loan Party acknowledges and agrees that, (A) each Loan Document to which it is a party is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms (in the case of the Credit Agreement and the Pledge and Security Agreement, in each case, as amended hereby) and (B) the Collateral Documents do, and all of the Collateral does, and in each case shall continue to, secure the payment of all Secured Obligations (as defined in the Pledge and Security Agreement, as amended hereby) on the terms and conditions set forth in the Collateral Documents, and hereby ratifies the security interests granted by it pursuant to the Collateral Documents and (ii) each Guarantor hereby confirms and ratifies its continuing unconditional obligations as Guarantor under the Guaranty with respect to all of the Guaranteed Obligations.

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SECTION 9. GOVERNING LAW. THIS SECOND AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

SECTION 10. Costs and Expenses. The Borrower agrees to reimburse the Administrative Agent for its actual and reasonable costs and expenses in connection with this Second Amendment to the extent required pursuant to Section 10.04 of the Credit Agreement.

SECTION 11. Counterparts; Effectiveness. This Second Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic imaging means of an executed counterpart of a signature page to this Second Amendment shall be effective as delivery of an original executed counterpart of this Second Amendment.

SECTION 12. Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

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[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

[Signature Page to Amendment No. 2 to the Amended and Restated Credit and Guaranty Agreement]

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Schedule 1

COMMITMENTS AND APPLICABLE PERCENTAGES

2021 Refinancing Term Commitments

2021 Refinancing Revolving Credit Commitments (USD)

2021 Refinancing Revolving Credit Commitments (Multicurrency)

(i)    Exhibit A

[Amendments to Credit Agreement attached]

EXECUTION VERSION

Published CUSIP Number: 43644AAZ243644ABD0

CUSIP (USD Revolving Credit Facility): 43644ABB443644ABE8

CUSIP (Multicurrency Revolving Credit Facility): 43644ABA643644ABF5

CUSIP (Term Facility): 43644ABC243644ABG3

AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

Originally dated as of May 29, 2015, amended and restated as of October 3, 2017 and, amended as of December 17, 2018 and amended as of September  27, 2021

among

HOLOGIC, INC.,

and

CERTAIN SUBSIDIARIES

as Borrowers,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,

The Other Lenders Party Hereto,

▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATEDBOFA SECURITIES, INC.,

▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,

▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,

JPMORGAN CHASE BANK, N.A.

CITIBANK, N.A.

and

MUFG and

THE  BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

as

Co-Syndication Agents

DNB BANK ASA, NEW YORK

HSBC BANK USA, NATIONAL ASSOCIATION

▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.

and

SUMITOMO MITSUI BANKING CORPORATIONand,

CITIGROUP GLOBAL MARKETS INC.,

as Co-Documentation Agents

▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, 

BOFA SECURITIES, INC.,

▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,

▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,

JPMORGAN CHASE BANK, N.A.

CITIBANK, N.A.

and

THEMUFG BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

as

Joint Lead Arrangers and Joint Bookrunners

TABLE OF CONTENTS

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SCHEDULES

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EXHIBITS

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AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT (this “Agreement”) originally dated as of May 29, 2015 and amended and restated as of October 3, 2017 among HOLOGIC, INC., a Delaware corporation (the “Company”), HOLOGIC GGO 4 LTD (the “U.K. Borrower”, and together with the Company, the “Initial Borrowers”), HOLOGIC UK FINANCE LTD and certain other Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a “Designated Borrower” and, together with the Initial Borrowers, the “Borrowers” and, each a “Borrower”), the Guarantors from time to time party hereto, each lender from time to time party hereto (collectively, the “Lenders” and individually, each a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.

WHEREAS, the Company, the U.K. Borrower, the Designated Borrowers, the Guarantors and the Administrative Agent are party to the Original Credit Agreement (such terms and other capitalized terms used in these preliminary statements being defined in Section 1.01 hereof), together with the lenders party thereto, which became effective as of May 29, 2015;

WHEREAS, the Company desires to obtain 2017 Refinancing Term Loans, the proceeds of which will be used on the Restatement Date to prepay in full all of the Existing Term A Loans outstanding immediately prior to the effectiveness of this Agreement;

WHEREAS, the Company desires to obtain (a) 2017 Incremental Term Loans on the Restatement Date, the proceeds of which will be used to pay Convertible Note Repayment Obligations, purchase, repurchase or redeem Convertible Notes pursuant to Section 7.04(c)(y), to fund the Convertible Note Repayment Reserve as permitted hereunder, and for working capital and all other general corporate purposes and (b) commitments under the 2017 Revolving Credit Facility;

WHEREAS, the 2017 Refinancing Term Loans and the 2017 Incremental Term Loans will, when taken together, comprise a single Class of Term Loans under this Agreement, having identical terms; and

WHEREAS, pursuant to the terms of this Amended and Restated Credit and Guaranty Agreement and upon satisfaction of the conditions set forth herein, the Original Credit Agreement is being amended and restated in the form of this Agreement, effective as of the Restatement Date.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE 1

DEFINITIONS AND ACCOUNTING TERMS

Section 1.01.     Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

“2017 Incremental Term Commitment” means, as to any 2017 Incremental Term Lender, its obligation to make 2017 Incremental Term Loans to the Company on the Restatement Date pursuant to Section 2.01(a) in the amount set forth opposite such 2017 Incremental Term Lender’s name on Schedule 2.01.

“2017 Incremental Term Lender” means any Lender with a 2017 Incremental Term Commitment.

“2017 Incremental Term Loan” means the Incremental Term Loans made to the Company on the Restatement Date pursuant to Section 2.01(a).

“2017 Notes” means unsecured Indebtedness of the Company in the form of notes; provided that such unsecured Indebtedness (1) matures after, and does not require any scheduled amortization or scheduled or mandatory payments of principal prior to, the date which is at least 120 days after the latest maturity date of the Term Loans (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemption provisions satisfying the requirement of clause (2) of this definition), (2) has terms and conditions (other than interest rates, fees, funding discounts, redemption premiums or other premiums, optional redemption or prepayment provisions and, to the extent customary, subordination terms), that are not materially more favorable, taken as a whole, that are not materially less favorable to the Companyinvestors than the terms and conditions for the existing Senior Notes, as determined in good faith by the Company and (3) shall not be guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors and the terms of such guarantee shall not be nomaterially more favorable, taken as a whole, to the secured partiesinvestors in respect of such Indebtedness than the terms of the Guaranty, taken as a whole, as determined in good faith by the Company.

“2017 Refinancing Term Commitment” means, as to any 2017 Refinancing Term Lender, its obligation to make 2017 Refinancing Term Loans to the Company on the Restatement Date pursuant to Section 2.01(a) in the amount set forth opposite such 2017 Refinancing Term Lender’s name on Schedule 2.01.

“2017 Refinancing Term Lender” means any Lender with a 2017 Refinancing Term Commitment.

“2017 Refinancing Term Loan” means the Refinancing Term Loans made to the Company on the Restatement Date pursuant to Section 2.01(a).

“2017 Revolving Credit Facility” means the Revolving Credit Facility established on the Restatement Date.

“2017 Term Facility” means the facility established on the Restatement Date with respect to the 2017 Term Loans.

“2017 Term Loans” means the 2017 Incremental Term Loans and the 2017 Refinancing Term Loans.

“2018 Refinancing Term Commitment” means, as to any 2018 Refinancing Term Lender, its obligation to make 2018 Refinancing Term Loans to the Company on the First Amendment Effective Date pursuant to Section 2.01(a) in the amount set forth opposite such 2018 Refinancing Term Lender’s name on Schedule 2.01.

“2018 Refinancing Term Lender” means any Lender with a 2018 Refinancing Term Commitment.

“2018 Refinancing Term Loans” means the Term Loans made to the Company on the First Amendment Effective Date pursuant to Section 2.01(a).

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“2018 Revolving Credit Facility” means the Revolving Credit Facility established on the First Amendment Effective Date.

“2018 Term Facility” means the term loan facility established on the First Amendment Effective Date with respect to the 2018 Refinancing Term Loans.

“2021 Refinancing Revolving Credit Commitment” means, as to any 2021 Refinancing Revolving Credit Lender, its obligation to make 2021 Refinancing Revolving Credit Loans to the Borrowers pursuant to Section 2.01(b) in the amount set forth opposite such 2021 Refinancing Revolving Credit Lender’s name on Schedule 2.01.

“2021 Refinancing Revolving Credit Loans” means the Revolving Credit Loans made to the Borrowers pursuant to Section 2.01(b).

“ 2021 Refinancing Term Commitment” means, as to any 2021 Refinancing Term Lender, its obligation to make 2021 Refinancing Term Loans to the Company on the Second Amendment Effective Date pursuant to Section 2.01(a) in the amount set forth opposite such 2021 Refinancing Term Lender’s name on Schedule 2.01.

“ 2021 Refinancing Term Lender” means any Lender with a 2021 Refinancing Term Commitment.

“2021 Refinancing Term Loans” means the Term Loans made to the Company on the Second Amendment Effective Date pursuant to Section 2.01(a).

“ 2021 Refinancing Revolving Credit Lender” means any Lender with a 2021 Refinancing Revolving Credit Commitment.

“2021 Revolving Credit Facility” means the Revolving Credit Facility established on the Second Amendment Effective Date.

“ 2021 Term Facility” means the term loan facility established on the Second Amendment Effective Date with respect to the 2021 Refinancing Term Loans.

“Acquired Non-Investment-Grade Securities” means any and all investment securities (including equity securities listed on a national securities exchange) acquired by the Company and/or any Subsidiary of the Company in any Permitted Acquisition, Prior Acquisition and/or any other acquisition that constitutes a permitted Investment which are not Investment Grade Securities or securities issued by an Affiliate of such Subsidiary, a Subsidiary of Company or the Company, to the extent that such investment securities were owned by such Subsidiary at the time of such Permitted Acquisition, Prior Acquisition and/or any other acquisition that constitutes a permitted Investment, as applicable, and were not acquired in contemplation thereof.

“Additional Lender” has the meaning specified in Section 2.19.

“Adjusted Consolidated Cash Interest Expense” means for any period, the Adjusted Consolidated Interest Expense for such period, excluding any amount not payable in Cash, original issue discount and amortization and write-off of deferred financing fees and other imputed non-cash interest charges relating to the Convertible Notes or any other Indebtedness now or hereafter outstanding.

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“Adjusted Consolidated Interest Expense” means for any period and without duplication, total interest expense in accordance with GAAP (including that portion attributable to Capital Leases in accordance with GAAP, capitalized interest, amortization and write-off of deferred financing fees and amortization in relation to terminated Hedge Agreements) of the Company and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Company and its Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit, net costs under Interest Rate Agreements, capitalized interest and the interest component of all Attributable Receivables Indebtedness.

“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Company and the Lenders.

“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.

“Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of the Company or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of any Responsible Officer of the Company or any of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

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

“Agent” means each of the Administrative Agent, the Co-Syndication Agents, the Collateral Agent, the Arrangers, the Co-Documentation Agents and any other Person appointed under the Loan Documents to serve in an agent or similar capacity.

“Agent Parties” has the meaning specified in Section 10.02(c).

“Aggregate Commitments” means the Commitments of all the Lenders.

“Aggregate Multicurrency Revolving Commitments” means the Multicurrency Revolving Credit Commitments of all the Multicurrency Revolving Credit Lenders.

“Aggregate Payments” has the meaning specified in Section 11.02.

“Aggregate Revolving Commitments” means, collectively, the Aggregate Multicurrency Revolving Commitments and the Aggregate USD Revolving Commitments.

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“Aggregate USD Revolving Commitments” means the USD Revolving Credit Commitments of all the USD Revolving Credit Lenders.

“ Agreed Currency” means Dollars or any Alternative Currency, as applicable.

“Agreement” means the Original Credit Agreement as amended and restated by this Amended and Restated Credit and Guaranty Agreement.

“Agreement Currency” has the meaning specified in Section 10.19.

“Alternative Currency” means each of the following currencies: Euro, Sterling and each other currency (other than Dollars) that is approved in accordance with Section 1.06.

“ Alternative Currency Daily Rate” means, for any day, with respect to any Credit Extension:

(a)      denominated in Sterling, the rate per annum equal to ▇▇▇▇▇ determined pursuant to the definition thereof plus the ▇▇▇▇▇ Adjustment; and

(b)    denominated in any other Alternative Currency (other than Euros) (to the extent such Loans denominated in such currency will bear interest at a daily rate), the daily rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.06(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to Section 1.06(a);

provided, that, if any Alternative Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in an Alternative Currency Daily Rate shall be effective from and including the date of such change without further notice.

“ Alternative Currency Daily Rate Loan” means a Multicurrency Revolving Credit Loan that bears interest at a rate based on the definition of “Alternative Currency Daily Rate.” All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.

“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as calculated by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the then-most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

“ Alternative Currency Loan” means an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.

“Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate Multicurrency Revolving Commitments and $300,000,000500,000,000 . The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Multicurrency Revolving Commitments.

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“ Alternative Currency Term Rate” means, for any Interest Period, with respect to any Credit Extension:

(a)     denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR ”) , as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the day that is two TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period; and

(b)     denominated in any other Alternative Currency (other than Sterling) (to the extent such Loans denominated in such currency will bear interest at a term rate), the term rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.06(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to Section 1.06(a);

provided, that, if any Alternative Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in an Alternative Currency Term Rate shall be effective from and including the date of such change without further notice.

“ Alternative Currency Term Rate Loan” means a Multicurrency Revolving Credit Loan that bears interest at a rate based on the definition of “Alternative Currency Term Rate.” All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.

“Applicable Foreign Obligor Documents” has the meaning specified in Section 5.30.

“Applicable Percentage” means (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented by such Term Lender’s outstanding Term Loans at such time, (b) in respect of the Multicurrency Revolving Credit Facility, with respect to any Multicurrency Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Multicurrency Revolving Credit Facility represented by such Multicurrency Revolving Credit Lender’s Multicurrency Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.18 and (c) in respect of the USD Revolving Credit Facility, with respect to any USD Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the USD Revolving Credit Facility represented by such USD Revolving Credit Lender’s USD Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.18. If the Commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the applicable Revolving Credit Facility shall be determined based on the Applicable Percentage of such Revolving Credit Lender then-most recently in effect, after giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Applicable Rate” means, from time to time, in respect of the Term Facility, the Revolving Credit Facility and the Commitment Fee, (i) from the FirstSecond Amendment Effective Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.01(c) for the Fiscal Quarter ending December 3024, 20182021 , a percentage per annum determined by reference to Pricing Level 3 set forth below and (ii) thereafter, the applicable percentage per annum set forth below determined by reference to the

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Total Net Leverage Ratio as set forth in the then-most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.01(c):

Any increase or decrease in the Applicable Rate resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.01(c); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).

“Applicable Period” has the meaning specified in the term “Applicable Rate.”

“Applicable Revolving Credit Percentage” means (a) with respect to any Multicurrency Revolving Credit Lender at any time, such Multicurrency Revolving Credit Lender’s Applicable Percentage in respect of the Multicurrency Revolving Credit Facility at such time and (b) with respect to any USD Revolving Credit Lender at any time, such USD Revolving Credit Lender’s Applicable Percentage in respect of the USD Revolving Credit Facility at such time.

“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

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“Applicant Borrower” has the meaning specified in Section 2.14(a).

“Appropriate Lender” means, at any time, (a) with respect to the Term Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer, (ii) if any Multicurrency Letters of Credit have been issued pursuant to Section 2.03, the Multicurrency Revolving Credit Lenders and (iii) if any USD Letters of Credit have been issued pursuant to Section 2.03, the USD Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the USD Revolving Credit Lenders.

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

“Arrangers” means (i) with respect to the Term Facility and the Revolving Credit Facilities established on the Closing Date, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Citigroup Global Markets Inc., ▇▇▇▇▇▇▇ Sachs Bank USA, JPMorgan Chase Bank, N.A. and TheMUFG Bank of Tokyo-Mitsubishi UFJ, Ltd., in their capacities as joint lead arrangers and joint bookrunners, (ii) with respect to the 2017 Term Facility and the 2017 Revolving Credit Facilities, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated in its capacity as sole lead arranger and sole bookrunner and (iii) with respect to the 2018 Refinancing Term Facility and the 2018 Revolving Credit Facilities, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, JPMorgan Chase Bank, N.A. and TheMUFG Bank of Tokyo-Mitsubishi UFJ, Ltd., in their capacities as joint lead arrangers and joint bookrunners. and (iv) with respect to the 2021 Term Facility and the 2021 Revolving Credit Facility, BofA Securities, Inc., ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇▇▇ Sachs Bank USA, JPMorgan Chase Bank, N.A., MUFG Bank, Ltd. and Citibank, N.A., in their capacities as joint lead arrangers and joint bookrunners.

“Asset Sale” means a sale or lease (as lessor), sale and leaseback, assignment, conveyance, exclusive license (as licensor), transfer or other Disposition to, or any exchange of property with, any Person (other than the Company or any Subsidiary Guarantor), in one transaction or a series of transactions, of all or any part of the Company’s or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, including the Equity Interests of any of the Company’s Subsidiaries (but, for the avoidance of doubt, not including the issuance by the Company or any Subsidiary of Equity Interests), other than (i) inventory (or other tangible or intangible assets) sold, assigned, leased or licensed out in the ordinary course of business to the extent not otherwise prohibited hereunder, (ii) any Disposition to effect or in furtherance of the Reorganization, (iii) the transactions listed on Schedule 1.01(A), (iv) Permitted Licenses, (vi) the sale or other Disposition of Investment Grade Securities and Cash Equivalents in exchange for Cash, (vii) the sale, assignment, lease or license of any Discontinued Real Property, (viii) the surrender or waiver of contract rights on the settlement, release or surrender of contract, tort or other claims and (ix) the sale or other Disposition of a Securitization Intercompany Note in connection with a Qualified Intercompany Note Transaction.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

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“ ASU” means Accounting Standards Updates issued by the Financial Accounting Standards Board from time to time.

“Attributable Receivables Indebtedness” at any time means the principal amount of Indebtedness which (i) if a Qualified Receivables Transaction is structured as a secured lending agreement, constitutes the principal amount of such Indebtedness or (ii) if a Qualified Receivables Transaction is structured as a purchase agreement, would be outstanding at such time under the Qualified Receivables Transaction if the same were structured as a secured lending agreement rather than a purchase agreement.

“Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the Fiscal Year ended September 24, 2016, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the Company and its Subsidiaries, including the notes thereto.

“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b).

“Auto-Reinstatement Letter of Credit” has the meaning specified in Section 2.03(b).

“ Available Amount” means, with respect to any Fiscal Year, the greater of (i) $500,000,000 and (ii) the sum of (x) $250,000,000, plus (y) 16.67% of Consolidated Adjusted EBITDA for the period of four (4)  Fiscal Quarters ending on the last day of the most recent Fiscal Year for which financial statements are available. For the avoidance of doubt, the Available Amount resets and is otherwise replenished each Fiscal Year.

“Available Tenor” means , as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date excluding, for the avoidance of doubt, any tenor for such Benchmark that is then removed from the definition of “Interest Period” pursuant to Section 3.03(c).

“Available Amount” means, on any date (the “Available Amount Reference Time”), the sum of:

(a) $200,000,000, plus

(b) the Available ECF Amount, plus 

(c) the amount of any Net Equity Proceeds from any issuance of Equity Interests received by or made to the Company (or any direct or indirect parent thereof and contributed by such parent to the Company) during the period commencing on the first day of the Fiscal Year ending in September 2018 through and including the Available Amount Reference Time, in each case, to the extent that such Equity Issuance is not prohibited hereunder, plus

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(d) to the extent not (i) already included in the calculation of Consolidated Net Income of the Company and its Subsidiaries or (ii) already reflected as a return of capital, repayment of principal, or deemed reduction in the amount of such Investment pursuant to clause (e) below or any other provision of Section 7.06, the aggregate amount of all cash dividends, profits, returns, repayment of principal, cash distributions, or similar other amounts received by the Company or any Subsidiary from any Investment pursuant to Section 7.06 during the period commencing on the first day of the Fiscal Year ending in September 2018 through and including the Available Amount Reference Time, minus

(e) the aggregate amount of any Restricted Junior Payment made from the Available Amount pursuant to Section 7.04(k), in each case, during the period commencing on the first day of the Fiscal Year ending in September 2018 through and including the Available Amount Reference Time.

“Available ECF Amount” means, on any date, an amount determined on a cumulative basis equal to Consolidated Excess Cash Flow for each Fiscal Year of the Company commencing with the Fiscal Year ending in September 2018.

“Availability Period” means, in respect of a Class of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (a) the Maturity Date for such Class of the Revolving Credit Facility, (b) the date of termination of the Revolving Credit Commitments of such Class pursuant to Section 2.05, and (c) the date of termination of the commitment of each Revolving Credit Lender of such Class to make Revolving Credit Loans of such Class and of the obligation of the L/C Issuer to make L/C Credit Extensions of such Class pursuant to Section 8.02.

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

“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule., and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bank of America” means Bank of America, N.A. and its successors.

“Base Indenture” means that certain Indenture dated as of December 10, 2007 by and between Wilmington Trust Company, as trustee, and the Company.

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurocurrency Rate plus 1.00%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for

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purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’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 such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

“Benchmark ” means, initially, LIBOR; provided that if a replacement of the Benchmark has occurred pursuant to Section 3.03(d) then “Benchmark ” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark ” shall include, as applicable, the published component used in the calculation thereof.

“ Benchmark Replacement” means:

(a)     For purposes of Section 3.03(d )(i ), the first alternative set forth below that can be determined by the Administrative Agent:

(i)     the sum of: (i)  Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration, or

(ii)     the sum of: (i)  Daily Simple SOFR and (ii) the spread adjustment which is 0.11448% (11.448 basis points);

provided that, (x) if initially LIBOR is replaced with the rate contained in clause (ii) above (Daily Simple SOFR plus the applicable spread adjustment) and subsequent to such replacement, the Administrative Agent determines that Term SOFR has become available and is administratively feasible for the Administrative Agent in its sole discretion or (y) if initially LIBOR is replaced with the rate contained in clause (i)  above (Term SOFR plus the applicable spread adjustment) and concurrent with or subsequent to such replacement, the Administrative Agent determines that Daily Simple SOFR has become available and is administratively feasible for the Administrative Agent in its sole discretion, then the Administrative Agent shall promptly notify the Borrower and each Lender of such availability, and, in either case, from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Benchmark Replacement shall include both of the rates as set forth in clause (i)  and (ii) above, which may be selected by the Borrower with respect to each applicable Borrowing in accordance with the terms hereof; and

(b) For purposes of Section 3.03(d)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by a Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;

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provided that, if the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.

Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent (after consulting with the Company).

“ Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides (after consulting with the Company) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement (including the availability of both Term SOFR and Daily Simple SOFR as set forth in the definition thereof) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines (after consulting with the Company) that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides (after consulting with the Company) is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“ Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark or a Governmental authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“ BHC Act Affiliate” of a party means an “affiliate ” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

“Board of Directors” shall mean, as to any Person, the board of directors or managers, as applicable, or other governing body of such Person, or if such person is managed by a single entity, the board of directors or managers, as applicable, or other governing body of such entity.

“Borrower” and “Borrowers” each has the meaning specified in the introductory paragraph hereto.

“Borrowing” means a Revolving Credit Borrowing, a Term Borrowing and/or a Swing Line Borrowing, as the context may require.

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“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Loan Document Obligations denominated in Dollars is located and:

(a)     (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan or a LIBOR Daily Floating Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan or LIBOR Daily Floating Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan or LIBOR Daily Floating Rate Loan, means any such day that is also a London Banking Day;

(b)     (b) if such day relates to any interest rate settings as to a Eurocurrency Ratean Alternative Currency Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency RateAlternative Currency Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency RateAlternative Currency Loan, means a Business Day that is also a TARGET Day;

(c)     (c) if such day relates to any interest rate settings as to a Eurocurrency Ratean Alternative Currency Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; andSterling, means a day other than a day banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom; and

(d)     (d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Ratean Alternative Currency Loan denominated in a currency other than Dollars or Euro or Sterling, or any other dealings in any currency other than Dollars or Euro or Sterling to be carried out pursuant to this Agreement in respect of any such Eurocurrency RateAlternative Currency Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

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

“Cash” means money, currency or a credit balance in any demand or Deposit Account.

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of the Lenders to fund participations in respect thereof, cash or deposit account balances or, at the request of the Company, if the Administrative Agent, the L/C Issuer or the Swing Line Lender shall agree in their sole discretion, other credit support, in each case pursuant

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to documentation in form and substance satisfactory to the Administrative Agent, the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Cash Equivalents” means, as at any date of determination, any of the following: (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States government, (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, or (c) issued or directly and unconditionally guaranteed as to interest and principal by any country which is a member of the Organization for Economic Cooperation and Development (the “OECD”), in each case maturing within one year after such date of determination; (ii) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date of determination and having, at the time of the acquisition thereof, a rating of at least A 1 from S&P or at least P-1 from ▇▇▇▇▇’▇; (iii) (a) commercial paper maturing no more than one year from such date of determination and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from ▇▇▇▇▇’▇ and (b) securities commonly known as “short-term bank notes” issued by any Lender and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from ▇▇▇▇▇’▇; (iv) demand deposits, certificates of deposit, bankers’ acceptances and/or time deposits maturing within one year after such date of determination and issued or accepted by any Lender or by (a) any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia or Canada that has total assets of not less than $1,000,000,000 or (b) a commercial bank organized under the laws of any other country which is a member of the OECD, or a political subdivision of such country, and having total assets of not less than $1,000,000,000, provided that such bank is acting through a branch or agency located in the country in which is organized or another country which is a member of the OECD; (v) taxable or tax-exempt securities which at the time of purchase have been rated and the ratings for which are not less than A 3 if rated by ▇▇▇▇▇’▇, and not less than A- if rated by S&P, (vi) shares of any money market mutual fund or similar fund that is primarily invested in some combination of the types of investments referred to in clauses (i) through (v) above (though such mutual fund shall not be required to maintain investments in each of such types of investments); and (vii) instruments equivalent to those referred to in clauses (i) to (vi) above denominated in Euros, Pounds Sterling, or any other major currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent required or advisable in connection with any business conducted by the Company or any Subsidiary organized or operating in such jurisdiction.

“Cash Management Agreements” means those agreements entered into from time to time by the Company or its Subsidiaries with a Cash Management Provider in connection with the obtaining of any Cash Management Services.

“Cash Management Obligations” means all obligations, liabilities, contingent reimbursement obligations, fees and expenses owing by the Company or any of its Subsidiaries to any Cash Management Provider pursuant to or evidenced by the Cash Management Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

“Cash Management Provider” means any Lender or Affiliate of a Lender which provides Cash Management Services to the Company or its Subsidiaries; provided that each such Affiliate shall appoint the Collateral Agent as its agent and agree to be bound by the Loan Documents as a Secured Party, subject to Section 9.11.

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“Cash Management Services” means any cash management, including controlled disbursement, accounts, brokerage services, or related services (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) provided to the Company or any of its Subsidiaries by a Cash Management Provider.

“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.

“Change in Law” means the occurrence, after the RestatementSecond Amendment Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III and (z) the CRD IV and any law or regulation which implements CRD IV in any jurisdiction, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means, at any time, (i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) (a) shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the total outstanding voting interest in the Equity Interests of the Company or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the Board of Directors (or similar governing body) of the Company; or (ii) the occurrence of a “Change of Control” (or any comparable term) under, and as defined in, the documents evidencing any Indebtedness permitted pursuant to one or more of Sections 7.01(h), (j), (k), (o) or (p) in an aggregate principal amount of not less than $100,000,000.

“Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a) Term Lenders, (b) Multicurrency Revolving Credit Lenders, (c) USD Revolving Credit Lenders (including the Swing Line Lender) and (d) New Term Loan Lenders; (ii) with respect to Loans, each of the following classes of Loans: (a) Term Loans, (b) Multicurrency Revolving Credit Loans, (c) USD Revolving Credit Loans (including Swing Line Loans) and (d) each Series of New Term Loans; (iii) with respect to Commitments, each of the following classes of Commitments: (a) Term Commitments, (b) Multicurrency Revolving Credit Commitments, (c) USD Revolving Credit Commitments and (d) New Term Loan Commitments and (iv) with respect to Facilities, each of the following classes of Facilities: (a) the Term Facility, (b) the Multicurrency Revolving Credit Facility and (c) the USD Revolving Credit Facility.

“Closing Date” means May 29, 2015.

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

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“Co-Development Agreement” means an agreement between the Company or any Subsidiary and a third party (excluding, for the avoidance of doubt, any joint venture or Subsidiary) which primarily relates to the co-development or joint development of Intellectual Property, and which does not materially interfere with the conduct of the Company’s or any of its Subsidiaries’ business as conducted on the RestatementSecond Amendment Effective Date (or as permitted by Section 7.11) or materially detract from the value thereof.

“Co-Documentation Agents” means (i) with respect to the Term Facility and the Revolving Credit Facilities established on the Closing Date, DNB Bank ASA, New York, HSBC Bank USA, National Association and Sumitomo Mitsui Banking Corporation, in their capacities as documentation agents, (ii) with respect to the 2017 Term Facility and the 2017 Revolving Credit Facilities, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and ▇▇▇▇▇ Fargo Bank, National Association and, (iii) with respect to the 2018 Refinancing Term Facility and the 2018 Revolving Credit Facilities, DNB Bank ASA, New York, HSBC Bank USA, National Association, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Sumitomo Mitsui Banking Corporation and Citigroup Global Markets Inc. and (iv) with respect to the 2021 Term Facility and the 2021 Revolving Credit Facility, DNB Bank ASA, New York, Morgan ▇▇▇▇▇▇▇ Senior Funding, Inc. and Sumitomo Mitsui Banking Corporation.

“Collateral” means all of the “Collateral” or other similar terms referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.

“Collateral Agent” means Bank of America, in its capacity as Collateral Agent under the Collateral Documents.

“Collateral Documents” means the Pledge and Security Agreement, the Intellectual Property Security Agreements, and all other instruments, documents and agreements delivered by any Loan Party pursuant to this Agreement or any of the other Loan Documents in order to grant to, or perfect in favor of, the Collateral Agent, for the benefit of the Secured Parties, a Lien on any real, personal or mixed property of that Loan Party as security for the Obligations.

“Collateral Reinstatement Date” means the first date after any Collateral Release Date on which any of ▇▇▇▇▇’▇, Fitch or S&P shall downgrade the corporate rating or corporate family rating of the Company below Baa3 by ▇▇▇▇▇’▇ or BBB- by Fitch, Inc. or S&P.

“Collateral Release Date” means in each case,the first date on which (i)  no Event of Default shall have occurred and be continuing, (ii) the Company shall have at least two of the three following corporate ratings or corporate family ratings, in each case, with a stable (or better) outlook: at least Baa3 by ▇▇▇▇▇’▇, at least BBB- by Fitch, Inc. and/or at least BBB- by S&P and (iii) not including the Obligations secured by the Liens pursuant to the Loan Documents immediately before giving effect to the applicable Collateral Release Date, the aggregate principal or face amount of (x) indebtedness for borrowed money secured by Liens on the Collateral and (y) Indebtedness subject to the Priority Debt Cap (other than Indebtedness under Sections 7.01(n)(ii), 7.01(q) and 7.01(z), shall not exceed $300,000,000 then outstanding.