INCREMENTAL AND EIGHTH AMENDMENT TO CREDIT AGREEMENT

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TABLE OF CONTENTS

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	Section 5.03	Existence; Businesses and Properties	121115
	Section 5.04	Insurance	121115
	Section 5.05	Obligations and Taxes	122116
	Section 5.06	Employee Benefits	122116
	Section 5.07	Maintaining Records; Access to Properties and Inspections; Annual Meetings	123117
	Section 5.08	Use of Proceeds	123117
	Section 5.09	Compliance with Environmental Laws; Environmental Reports	124117
	Section 5.10	Compliance Policy.	124117
	Section 5.11	Additional Collateral; Additional Guarantors	124118
	Section 5.12	Security Interests; Further Assurances	126120
	Section 5.13	Information Regarding Collateral	127120
	Section 5.14	Maintenance of Ratings	127120
	Section 5.15	Post-Closing Matters.127Specified New Incremental Loan Covenants.	120
Article VI NEGATIVE COVENANTS			127124
	Section 6.01	Indebtedness.	127124
	Section 6.02	Liens	131127
	Section 6.03	Sale and Leaseback Transactions	134130
	Section 6.04	Investments, Loans and Advances	135130
	Section 6.05	Mergers and Consolidations	136131
	Section 6.06	Asset Sales	137131
	Section 6.07	Acquisitions	139132
	Section 6.08	Dividends	139132
	Section 6.09	Transactions with Affiliates	141133
	Section 6.10	Financial Covenants	141[Reserved] 134
	Section 6.11	Prepayments of Other Indebtedness; Modifications of Organizational Documents, Acquisition and Certain Other Documents, etc	142134
	Section 6.12	Limitation on Certain Restrictions on Subsidiaries	143134
	Section 6.13	Limitation on Issuance of Capital Stock	144135
	Section 6.14	Business	145136
	Section 6.15	Limitation on Accounting Changes	145136
	Section 6.16	Fiscal Periods	145136

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Annex I	Initial Lenders and Commitments
SCHEDULES
Schedule 1.01(a)	Mortgaged Property
Schedule 1.01(b)	Guarantors
Schedule 1.01(c)	Pledgors
Schedule 1.01(d)	Data Center Leases
Schedule 3.07(a)	Subsidiaries
Schedule 3.07(b)	Corporate Organizational Chart
Schedule 3.09	Material Agreements
Schedule 3.18	Environmental Matters
Schedule 3.20	Mortgage Filing Offices
Schedule 4.01(k)(vi)	Landlord Access Agreements
Schedule 4.01(l)(iii)	Title Insurance Amounts
Schedule 5.15	Post-Closing Matters
Schedule 6.01(b)(i)	Existing Indebtedness
Schedule 6.01(b)(ii)	Existing Letters of Credit
Schedule 6.02(c)	Existing Liens
Schedule 6.04(a)	Existing Investments
Schedule 8.01(o)	Permissible Data Center Terminations
EXHIBITS
Exhibit A	Form of Assignment and Assumption
Exhibit B	Form of Borrowing Request
Exhibit C	Form of Compliance Certificate
Exhibit D	Form of Intercompany Note
Exhibit E	Form of Interest Election Request
Exhibit F	Form of Landlord Access Agreement
Exhibit G	Form of LC Request
Exhibit H-1	Form of Fee Mortgage
Exhibit H-2	Form of Leasehold Mortgage
Exhibit I-1	Form of Term Note
Exhibit I-2	Form of Revolving Note
Exhibit I-3	Form of Swingline Note
Exhibit J-1	Form of Perfection Certificate
Exhibit J-2	Form of Perfection Certificate Supplement
Exhibit K	Form of Security Agreement
Exhibit L-1	Form of U.S. Tax Compliance Certificate (Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-2	Form of U.S. Tax Compliance Certificate (Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-3	Form of U.S. Tax Compliance Certificate (Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-4	Form of U.S. Tax Compliance Certificate (Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit M	Form of Solvency Certificate
Exhibit N	Form of Opinion of Jenner & Block LLP

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“Book Manager” has the meaning set forth in the preamble hereto. “Borrower” has the meaning set forth in the preamble hereto.

“Borrowing” means (a) Loans (other than New Incremental Loans) of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, (b) New Incremental Loans or (bc) a Swingline Loan.

 

“Borrowing Request” means a request by Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit B, or such other form as shall be approved by the Administrative Agent.

 

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(c)      any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Borrower, or control over the equity securities of Borrower entitled to vote for members of the Board of Directors of Borrower on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire (whether pursuant to an option right or otherwise)) representing 40% or more of the combined voting power of such securities.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, order, rule, regulation, policy, or treaty by any Governmental Authority, (b) any change in any law, order, 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 and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Charges” has the meaning set forth in Section 10.13.

“Claims” has the meaning set forth in Section 10.03(b).

“Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term Loans, New Incremental Loans, Swingline Loans, Incremental Term Loans or Other Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment, Term Loan Commitment, New Incremental Loan Commitment, Swingline Commitment or Other Commitment.

“Closing Date” means the date of the initial Credit Extension hereunder.

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

“Collateral” means, collectively, all of the Security Agreement Collateral, the New Incremental Loan Collateral, the Mortgaged Property and all other Property of whatever kind and nature, whether now existing or hereafter acquired, pledged or purported to be pledged as collateral or otherwise subject to a security interest or purported to be subject to a security interest under any Security Document.

“Collateral Agent” has the meaning set forth in the preamble hereto.

“Commitment” means, with respect to any Lender, such Lender’s Revolving Commitment, Term Loan Commitment, Swingline Commitment or Other Commitment.

“Commitment Fee” has the meaning set forth in Section 2.05(a).

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

“Communications” has the meaning set forth in Section 10.01(b).

“Communications Act” means, collectively, the Communications Act of 1934, as amended by the Telecommunications Act of 1996, and as further amended, and the rules and regulations promulgated thereunder, including, without limitation, C.F.R. Title 47 and the rules, regulations and decisions by the FCC, in each case, as from time to time in effect.

“Companies” means Borrower and its Restricted Subsidiaries; and “Company” means any one of them.

“Competitor” means (i) any competitor of the Borrower that is identified by the Borrower to the Arrangers in writing on or prior to the Closing Date or from time to time thereafter (subject in the case of competitors identified after the Closing Date to the consent of the Administrative AgentRequired Lenders, such consent not to be unreasonably withheld, delayed or conditioned) and (ii) any affiliate of any such competitor that is clearly identifiable as such, based solely on its name (other than any such affiliate that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business, as long as the power to direct or cause the direction of the investment policies of such affiliate is not possessed by any other such competitor or affiliate thereof); provided that no written notice delivered pursuant to this definition shall apply retroactively to disqualify any Person that has acquired an assignment or participation interest in the Loans prior to the delivery of such notice.

“Compliance Certificate” means a certificate of a Financial Officer of Borrower substantially in the form of Exhibit C or such other form as may be approved by the Administrative Agent and Borrower.

“Confidential Information Memorandum” means that certain confidential information memorandum dated March 2017.

“Consolidated Amortization Expense” means, for any period, the amortization expense (including the amortization of capitalized software expenses, internal labor costs and deferred financing fees) of Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Current Assets” means, as at any date of determination, the total assets of Borrower and its Restricted Subsidiaries (other than cash, cash equivalents and marketable securities) which may properly be classified as current assets on a consolidated balance sheet of Borrower and its Restricted Subsidiaries in accordance with GAAP.

“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Borrower and its Restricted Subsidiaries which may properly be classified as current liabilities on a consolidated balance sheet of Borrower and its Restricted Subsidiaries in accordance with GAAP excluding, to the extent otherwise included therein (a) the current portion of any Funded Debt, (b) the current portion of interest (excluding interest that is past due and unpaid), (c) liabilities in respect of unpaid earn-outs, (d) the current portion of deferred acquisition costs, (e) the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to any consummated acquisition, and (f) accruals for deferred taxes based on income or profits.

“Consolidated Depreciation Expense” means, for any period, the depreciation expense of Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period, adjusted by (x) adding thereto, without duplication, in each case, except with respect to sub clauses (m) or (p) below, only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income (and with respect to the portion of Consolidated Net Income attributable to any Restricted Subsidiary of Borrower only if a corresponding amount of cash would be permitted to be distributed to Borrower by such Restricted Subsidiary by operation of the terms of its Organizational Documents and all agreements, instruments, Orders and other Legal Requirements applicable to such Restricted Subsidiary or its equityholders during such period):

(a)       Consolidated Interest Expense (including realized losses in respect of any Obligation under Permitted Hedging Agreements as determined in accordance with GAAP) for such period;

(b)       Consolidated Amortization Expense for such period (including amortization of Capitalized Software Expenditures, internal labor costs and amortization of deferred financing fees or costs);

(c)       Consolidated Depreciation Expense for such period;

(d)       Consolidated Tax Expense for such period;

(e)       non-recurring costs and expenses directly incurred, within 60 days following the Closing Date, in connection with the Transaction;

(f)      transaction costs, fees and expenses in connection with any Permitted Acquisition or Investment permitted under Section 6.04(m) or (n) under Section 6.06(m) or (n) as in effect prior to the effectiveness of the Eighth Amendment, in each case to the extent such Permitted Acquisition or Investment was consummated prior to the New Incremental Loan Closing Date, Equity Issuances or the incurrence of any Indebtedness permitted hereunder, including a refinancing thereof;

(g)       transaction costs, fees and expenses in connection with any contemplated Permitted Acquisition permitted hereunder that is not consummated for any Test Period;[reserved];

(h)      transaction costs, fees and expenses incurred prior to the New Incremental Loan Closing Date in connection with any contemplated Permitted Acquisition or Investment permitted under Section 6.04(m) or (n) of as in effect prior to the effectiveness of the Eighth Amendment, Equity Issuances or the incurrence of any Indebtedness permitted hereunder that is not consummated;

(i)        nonrecurring or extraordinary cash losses and expenses not to exceed $7,500,000 for any Test Period;

(j)        restructuring charges or reserves incurred during such period determined on a consolidated basis in accordance with GAAP;

(k)      non-cash compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity Interests, the granting of stock options, and the granting of stock appreciation rights and similar arrangements (including any repricing, amendment, modification, substitution, or change of any such Equity Interests, stock option, stock appreciation rights, or similar arrangements) minus the amount of any such expenses or charges when paid in cash to the extent not deducted in the computation of Consolidated Net Income determined on a consolidated basis in accordance with GAAP;

(l)        the after-tax effect of any loss on sales of fixed assets or write-downs of fixed or intangible assets determined on a consolidated basis in accordance with GAAP;

(m)     cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (y) below for any previous period and not added back;

(n)      any costs or expenses incurred by Borrower or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of Borrower or Net Cash Proceeds of an issuance of Equity Interests of Borrower (other than Disqualified Capital Stock);

(o)      any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification 715, and any other items of a similar nature;

(p)       without duplication, the amount of “run rate” cost savings, operating expense reductions and synergies related to any Specified Transaction, any restructuring, cost saving initiative or other initiative projected by Borrower or any Restricted Subsidiary in good faith to be realized as a result of actions that have been taken or initiated or are expected to be taken (in the good faith determination of Borrower), including any cost savings, expenses and charges (including restructuring and integration charges) in connection with, or incurred by or on behalf of, any joint venture of Borrower or any of its Restricted Subsidiaries (whether accounted for on the financial statements of any such joint venture or the applicable Company) with respect to any Specified Transaction, any restructuring, cost saving initiative or other initiative whether initiated before, on or after the Closing Date, within 12 months after such Specified Transaction, restructuring, cost saving initiative or other initiative (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a Pro Forma Basis as though such cost savings had been realized on the first day of the relevant period), net of the amount of actual benefits realized from such actions; provided that (A) such cost savings are reasonably quantifiable and factually supportable, and identified and certified by the chief financial officer or equivalent officer of Borrower as meeting the requirements of this clause (p); (B) the share of any such cost savings, expenses and charges with respect to a joint venture that are to be allocated to Borrower or any of its Restricted Subsidiaries shall not exceed the total amount thereof for any such joint venture multiplied by the percentage of income of such venture expected to be included in Consolidated EBITDA for the relevant Test Period; and (C) the aggregate amount added back pursuant to this clause (p) for any Test Period shall not exceed 20% of Consolidated EBITDA for such Test Period (calculated prior to taking into account this clause (p));

(q)       the after-tax effect of any loss from the early purchase and retirement or extinguishment of Indebtedness;

(r)       charges incurred during such period for which insurance or indemnity recovery is actually received in cash during such period;

(s)       minority interest expense deducted and any other deductions attributable to minority interests and joint ventures (and not otherwise included in Consolidated Net Income);

(t)        with respect to Investments in any Person (other than a Subsidiary), net income during such period to the extent received in cash or Cash Equivalents during such period (and not otherwise included in Consolidated Net Income); and

(u)       the aggregate amount of all other non-cash items reducing Consolidated Net Income (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period or the amortization of a prepaid cash item that was paid in a prior period or any write-down or writeoff of assets for such period); and

(y)      subtracting therefrom (A) the aggregate amount of all non-cash items increasing Consolidated Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period, excluding any such income that represents the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than any such cash charge that has not increased Consolidated EBITDA); (B) the after-tax effect of any gain on sales of assets outside of the ordinary course of business; (C) realized gains in respect of obligations under Permitted Hedging Agreements as determined in accordance with GAAP; and (D) the after-tax effect of any income from the early purchase and retirement or extinguishment of Indebtedness.

“Consolidated Indebtedness” means, as at any date of determination, without duplication, the aggregate amount of all Indebtedness and all LC Exposure of Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.

“Consolidated Interest Coverage Ratio” means, for any Test Period, the ratio of (x) Consolidated EBITDA for such Test Period to (y) Cash Interest Expense for such Test Period.

“Consolidated Interest Expense” means, for any period, the total consolidated interest expense, net of total interest income, of Borrower and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP plus, without duplication:

(a)       imputed interest on Capital Lease Obligations and Attributable Indebtedness of Borrower and its Restricted Subsidiaries for such period;

(b)      commissions, discounts and other fees and charges owed by Borrower or any of its Restricted Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing, receivables financings and similar credit transactions for such period;

(c)       cash contributions to any employee stock ownership plan or similar trust made by Borrower or any of its Restricted Subsidiaries to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than Borrower or any of its Wholly Owned Subsidiaries) in connection with Indebtedness incurred by such plan or trust for such period;

(d)       all interest paid or payable with respect to discontinued operations of Borrower or any of its Restricted Subsidiaries for such period;

(e)      the interest portion of any payment obligations of Borrower or any of its Restricted Subsidiaries for such period deferred for payment at any future time, whether or not such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness, Contingent Obligations and/or Earnouts; and

(f)       without duplication, (i) all interest on any Indebtedness of Borrower or any of its Restricted Subsidiaries of the type described in clause (e) or (j) of the definition of “Indebtedness” for such period and (ii) all cash payments in respect of any Disqualified Capital Stock during such period;provided, that (x) for the purposes of determining the Consolidated Interest Coverage Ratio for the fiscal quarter in which the Closing Date occurs, Consolidated Interest Expense shall be deemed to be equal to the product of (A) the Consolidated Interest Expense for the period commencing on the Closing Date and ending on the last day of such fiscal quarter (the “Stub Period”) multiplied by (B) a fraction in the form of x/y, for which “x” is the number of days during such fiscal quarter and “y” is the number of days during such Stub Period, and (y) for the purposes of determining the Consolidated Interest Coverage Ratio for the Test Period ending on the last day of each of the three full fiscal quarters immediately succeeding the Stub Period, Consolidated Interest Expense shall be deemed to equal Consolidated Interest Expense for such fiscal quarter (and each previous fiscal quarter commencing after the Stub Period, if any) multiplied by 4, 2 and 4/3, respectively.

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

(a)       the net income (or loss) of an Unrestricted Subsidiary or any other Person (other than the Borrower or a Restricted Subsidiary of Borrower) in which any Person other than Borrower or any of its Restricted Subsidiaries has an ownership interest, except to the extent that cash or Cash Equivalents in an amount equal to any such income has actually been received by Borrower or (subject to clause (b) below) any of its Wholly Owned Subsidiaries from such Person during such period (or if not received in cash or Cash Equivalents but later converted into cash or Cash Equivalents during such period, upon such conversion);

(b)       solely for purposes of calculating the Cumulative Credit Availability, the net income of any Restricted Subsidiary of Borrower during such period to the extent that the declaration and/or payment of dividends or similar distributions by such Subsidiary of that income is not permitted by operation of the terms of its Organizational Documents or any agreement, instrument, Order or other Legal Requirement applicable to that Restricted Subsidiary or its equityholders during such period, unless such restriction with respect to the declaration and/or payment of dividends or other distributions has been legally waived, except that Borrower’s equity in net loss of any such Restricted Subsidiary for such period shall be included in determining Consolidated Net Income; provided that Consolidated Net Income shall be increased by the amount of dividends or other distributions actually paid in cash or Cash Equivalents (or to the extent converted into cash or Cash Equivalents) to Borrower or any such Restricted Subsidiary;[Reserved];

(c)       earnings resulting from any reappraisal, revaluation or write-up of assets;

(d)      any extraordinary or nonrecurring noncash gain (or extraordinary or nonrecurring noncash loss), together with any related provision for taxes on any such noncash gain (or the tax effect of any such noncash loss), recorded or recognized by Borrower or any of its Restricted Subsidiaries during such period;

(e)       the cumulative effect of a change in accounting principles during such period to the extent included in Consolidated Net Income;

(f)        any income (loss) for such period attributable to the early extinguishment of Indebtedness, hedging agreements or other derivative instruments;

(g)       any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of);

(h)      any non-cash gain (loss) attributable to the ▇▇▇▇ to market movement in the valuation of hedging obligations or other derivative instruments pursuant to FASB Accounting Standards Codification 815-Derivatives and Hedging or ▇▇▇▇ to market movement of other financial instruments pursuant to FASB Accounting Standards Codification 825-Financial Instruments in such period; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period;

(i)        any non-cash gain (loss) related to currency remeasurements of Indebtedness, net loss or gain resulting from hedging agreements for currency exchange risk and revaluations of intercompany balances; and

(j)        any impairment charge or asset write-off or write-down (including related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities).

There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to Borrower and its Restricted Subsidiaries), as a result of any Permitted AcquisitionsAcquisition consummated prior to the New Incremental Loan Closing Date or other Investment or the amortization or write-off of any amounts thereof.

In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted hereunder (net of any amount so added back in any prior period to the extent not so reimbursed within a one-year period) and (ii) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period.

“Consolidated Tax Expense” means, for any period, the tax expense (including federal, state, local and foreign income taxes) of Borrower and its Restricted Subsidiaries, for such period, determined on a consolidated basis in accordance with GAAP.

“Contingent Obligation” means, as to any Person, any obligation, agreement, understanding or arrangement of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation, agreement, understanding or arrangement of such Person, whether or not contingent, (a) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth, net equity, liquidity, level of income, cash flow or solvency of the primary obligor, (c) to purchase or lease Property, securities or services primarily for the purpose of assuring the primary obligor of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement or equivalent obligation arises (which reimbursement obligation shall constitute a primary obligation) or (e) otherwise to assure or hold harmless the primary obligor of any such primary obligation against loss (in whole or in part) in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or consistent with past practice or any product or service warranties given in the ordinary course of business or consistent with past practice. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation, or portion thereof, in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable, whether singly or jointly, pursuant to the terms of the instrument, agreements or other documents or, if applicable, unwritten agreement, evidencing such Contingent Obligation) 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.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Control Agreement” has the meaning set forth in the Security Agreement.

“Corrective Extension Amendment” has the meaning set forth in Section 2.20(f).

“Credit Extension” means, as the context may require, (i) the making of a Loan by a Lender or (ii) the issuance of any Letter of Credit, or the extension of the expiry date or renewal, or any amendment or other modification to increase the amount, of any existing Letter of Credit, by the Issuing Bank.

“Credit Facilities” means the revolving credit, swingline, letter of credit and term loan facilities provided for hereunder (including any increases in such facilities pursuant to Section 2.19or pursuant to any amendment hereto (including the New Incremental Loans, the Single Hop Acquisition Term Loan, and extensions of suchany term loan facilities pursuant to Section 2.20).

“Cumulative Credit AvailabilityPeriod” means, as of any date, an amount (which shall not be less than zero), determined on a cumulative basis, equal to, without duplication:at any time, the period from the New Incremental Loan Closing Date through the Prior Week.

 

 

 

 

 

 

“Data Center Lease” means the Leases listed on Schedule 1.01(d) and any lease of a data center entered into by a Loan Party after the Closing Date (other than pay-as-you-go or partner site leases).

“Debt Issuance” means the incurrence by any Company of any Indebtedness after the Closing Date (other than as permitted by Section 6.01).

“Debt Service” means, for any period, Cash Interest Expense for such period plus scheduled principal amortization and mandatory principal repayments (whether pursuant to this Agreement or otherwise) of all Indebtedness for such period.

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

“Declined Proceeds” has the meaning set forth in Section 2.10(h)(iii).

“Default” means any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.

“Default Excess” has the meaning set forth in Section 2.16(c).

“Default Period” has the meaning set forth in Section 2.16(c).

“Default Rate” has the meaning set forth in Section 2.06(c).

“Defaulted Loan” has the meaning set forth in Section 2.16(c).

“Defaulting Lender” means any Lender that (a) has failed to fund its portion of any Borrowing, or any portion of its participation in any Letter of Credit or Swingline Loan, within two (2) Business Days of the date on which it shall have been required to fund the same, unless the subject of a good faith dispute between Borrower and such Lender related hereto, (b) has notified Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally, (c) has failed, within three (3) Business Days after written request by the Administrative Agent or Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans (unless the subject of a good faith dispute between Borrower and such Lender) and participations in then outstanding Letters of Credit and Swingline Loans; provided that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent or Borrower, (d) has otherwise failed to pay over to Borrower, the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due (unless the subject of a good faith dispute), (e) has (i) been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its Properties or assets to be, insolvent or (ii) become the subject of a bankruptcy or other Insolvency Proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, unless, in the case of any Lender referred to in this clause (e), Borrower, the Administrative Agent, the Swingline Lender and each Issuing Bank shall be satisfied that such Lender intends, and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder; provided, however, that no Lender shall be deemed to be a Defaulting Lender under this clause (e) solely by virtue of an Undisclosed Administration or (f) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action. For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its parent by a Governmental Authority; provided that, as of any date of determination, the determination of whether any Lender is a Defaulting Lender hereunder shall not take into account, and shall not otherwise impair, any amounts funded by such Lender which have been assigned by such Lender to an SPC pursuant to Section 10.04(h). Any determination by the Administrative Agent that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination by the Administrative Agent to Borrower and each other Lender.

“Disposition” means, with respect to any Property, any conveyance, sale, lease, sublease, assignment, transfer or other disposition of such Property (including (i) by way of merger, consolidation or amalgamation, (ii) any Sale and Leaseback Transaction and (iii) any Synthetic Lease).

“Disqualified Capital Stock” means, with respect to any Person, any Equity Interest which, by its terms (or by the terms of any security or instrument into which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interests in such Person or in any direct or indirect parent thereof that do not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such Equity Interests), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or before the first anniversary of the Final Maturity Date, (b) is convertible into or exchangeable or exercisable (unless at the sole option of the issuer thereof) for (i) debt securities or other Indebtedness or (ii) any Equity Interests referred to in (a) above (other than solely for Equity Interests in such Person or in any direct or indirect parent thereof that do not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such Equity Interests), in each case at any time on or before the date that is 91 days following the Final Maturity Date, or (c) contains any repurchase or payment obligation which may come into effect before the date that is 91 days following the Final Maturity Date; provided, however, that (i) an Equity Interest in any Person that would not constitute Disqualified Capital Stock but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale,” “condemnation event,” a “change of control” or similar event shall not constitute Disqualified Capital Stock if any such requirement becomes operative only after all Secured Obligations under clauses (a) and (b) of the definition thereof (other than (i) contingent reimbursement and indemnification obligations that are not then due and payable, and (ii) obligations in respect of undrawn Letters of Credit) and the expiration of termination of undrawn Letters of Credit (or Cash Collateralization thereof)) have been paid in full and all Commitments have terminated or expired and (ii) if an Equity Interest in any Person is issued pursuant to any plan for the benefit of employees of Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by Borrower (or any direct or indirect parent company thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations of such Person or as a result of such employee’s termination, death, or disability.

“Dividend” means, with respect to any Person, that such Person has declared or paid a dividend or returned any equity capital to the holders of its Equity Interests or authorized or made any other distribution, payment or delivery of Property (other than Qualified Capital Stock of such Person) or cash to the holders of its Equity Interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity Interests outstanding (or any options or warrants issued by such Person with respect to its Equity Interests), or set aside or otherwise reserved, directly or indirectly, any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for consideration any of the outstanding Equity Interests of such Person (or any options or warrants issued by such Person with respect to its Equity Interests). Without limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of or otherwise reserving any funds for the foregoing purposes.

“Documentation Agent” has the meaning set forth in the preamble hereto.

“Dollars” or “$” means lawful money of the United States.

“Domestic Restricted Subsidiary” means any Restricted Subsidiary other than a Foreign Subsidiary.

“Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.

“Earnout” means, in connection with any Permitted Acquisition occurring prior to the New Incremental Loan Closing Date or other Investment, any “earn-out” or other agreement to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business.

“ECP” has the meaning assigned to such term in the definition of “Excluded Swap Obligation.”

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

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

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

“Effective Yield” means, as to any tranche of term loans or revolving loans (including, without limitation, the Term Loans and the Revolving Loans), the effective yield on such tranche of term loans or revolving loans, as applicable, as reasonably determined byEighth Amendment” means the Incremental and Eighth Amendment to Credit Agreement, dated as of March 13, 2020, among the Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent, taking into account the applicable interest rate margins, interest rate benchmark floors and all fees, including recurring, up-front or similar fees or original issue discount (amortized over four years following the date of incurrence thereof; provided, that (A) if the stated maturity date of a new tranche of term loans or revolving loans, as applicable, is less than four years from the date of determination, then the “Effective Yield” for such tranche of term loans or revolving loans, as applicable, shall be determined using an assumed amortization period equal to the actual remaining life to maturity of such tranche) payable generally to the lenders making such tranche of term loans or revolving loans, as applicable, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the lenders thereunder, and (B) with respect to any Indebtedness that includes a “LIBOR floor” or “Base Rate floor,” (i) to the extent that the LIBOR Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (ii) to the extent that the LIBOR Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield..

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.04(b) (subject to such consents, if any, as may be required under Section 10.04(b)).

 

“Embargoed Person” means any Person that is the subject of sanctions or trade restrictions under (a) United States law, including any Person identified on (i) the “List of Specially Designated Nationals and Blocked Persons” (the “SDN List”) maintained by OFAC and/or on any other similar list (“Other List”) maintained by OFAC pursuant to any authorizing statute including the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any executive order or regulation promulgated thereunder, or (ii) the Executive Order, any related enabling legislation or any other similar executive orders or (b) any person that is designated, listed or otherwise identified under Canadian Sanctions (the Legal Requirements referred to in clauses (a) and (b), collectively, “Sanctions Laws”).

“Employee Benefit Plan” means any of (a) any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was maintained, contributed to, or required to be maintained or contributed to by any Company or any of its ERISA Affiliates, (b) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (c) a “plan” as defined in Section 4975 of the Code or (d) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”, in each case, excluding any Canadian Pension Plan.

“Environment” means any surface or subsurface physical medium or natural resource, including air, land, soil, surface waters, ground waters, stream and river sediments, biota and any indoor area, surface or physical medium.

“Environmental Claim” means any claim, notice, demand, Order, action, suit, proceeding, or other communication alleging or asserting liability or obligations under or relating to Environmental Law, including liability or obligation for investigation, assessment, remediation, removal, cleanup, Response, corrective action, monitoring, post-remedial or post-closure studies, investigations, operations and maintenance, injury, damage, destruction or loss to natural resources, personal injury, wrongful death, Property damage, indemnification, fines, penalties or other costs resulting from, related to or arising out of (i) the presence, Release or threatened Release of Hazardous Material in, on, into or from the Environment at any location or (ii) any violation of or non-compliance with Environmental Law, and shall include any claim, notice, demand, Order, action, suit or proceeding seeking damages (including the costs of remediation), contribution, indemnification, cost recovery, penalties, fines, indemnities, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to health, safety or the Environment.

“Environmental Law” means any and all applicable current and future Legal Requirements relating to health, safety or the Environment, the Release or threatened Release of Hazardous Material, natural resources or natural resource damages, or occupational safety or health.

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

“Environmental Permit” means any permit, license, approval, consent, registration, notification, exemption or other authorization required by or from a Governmental Authority under any Environmental Law.

“Equity Interest” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), or if such Person is a limited liability company, membership interests and 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 Property of, such partnership, whether outstanding on the date hereof or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity.

“Equity Issuance” means, without duplication, (i) any issuance or sale by Borrower after the Closing Date of any Equity Interests in Borrower (including any Equity Interests issued upon exercise of any warrant or option or equity-based derivative) or any warrants or options or equity-based derivatives to purchase Equity Interests in Borrower, (ii) any Preferred Stock Issuance by Borrower after the Closing Date or (iii) any contribution to the capital of Borrower after the Closing Date.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) that, together with such Person, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code and regulations promulgated under those sections or within the meaning of meaning of Section 4001(b) of ERISA, or solely for purposes of Sections 302 and 303 of ERISA and Sections 412 and 430 of the Code, is treated as a single employer under Section 414 of the Code. Any former ERISA Affiliate of a Person or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of such Person or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Person or such Subsidiary and with respect to liabilities arising after such period for which such Person or such Subsidiary could reasonably be expected to be liable under the Code or ERISA, but in no event for more than six (6) years after such period if no such liability has been asserted against such Person or such Subsidiary; provided, however, that such Person or such Subsidiary shall continue to be an ERISA Affiliate of such Person or such Subsidiary after the expiration of the six-year period solely with respect to any liability asserted against such Person or such Subsidiary before the expiration of such six-year period.

“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan; (ii) the failure to meet the minimum funding standard of Section 412 or 430 of the Code and Section 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived) or the failure to make by its due date a required installment under Section 430(j) of the Code or Section 303(j) of ERISA with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by any Company or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the provision to any Company or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to institute proceedings to terminate any Pension Plan or Multiemployer Plan, or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (vi) the imposition of liability on any Company or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of any Company or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by any Company or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan, or the assets thereof, or against any Company or any of its ERISA Affiliates in connection with any Employee Benefit Plan; (ix) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (x) the imposition of a Lien pursuant to Section 401(a)(29) or 430(k) of the Code or pursuant to ERISA or otherwise with respect to any Pension Plan or Multiemployer Plan; (xi) the determination that any Pension Plan is considered an at-risk plan or that any Multiemployer Plan is endangered or is in critical status within the meaning of Section 430, 431 or 432 of the Code or Section 303, 304 or 305 of ERISA; (xii) the incurrence by any Company or any of its ERISA Affiliates of any liability under Title IV of ERISA, other than for PBGC premiums not yet due; or (xiii) the occurrence of a non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in liability to any Company or any of its ERISA Affiliates.

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

“Eurodollar Borrowing” means a Borrowing comprised of Eurodollar Loans.

“Eurodollar Loan” means any Eurodollar Revolving Loan or Eurodollar Term Loan.

“Eurodollar Revolving Borrowing” means a Borrowing comprised of Eurodollar Revolving Loans.

“Eurodollar Revolving Loan” means any Revolving Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.

“Eurodollar Term Loan” means any Term Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.

“Event of Default” has the meaning set forth in Article VIII.

“Excess Cash Flow” means, for any Excess Cash Flow Period, the sum, without duplication, of:

(i)       Consolidated Net Income for such Excess Cash Flow Period;

(ii)      an amount equal to all non-cash charges to the extent deducted in arriving at such Consolidated Net Income (provided, in each case, that if any non-cash charge represents an accrual or reserve for cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Excess Cash Flow in such future period);

(iii)     the decrease, if any, in the Net Working Capital, long-term receivables and long-term prepaid assets and the increase, if any, in long-term deferred revenue and long-term warranty accruals from the beginning to the end of such Excess Cash Flow Period;

(iv)     the reversal, during such Excess Cash Flow Period, of any reserve established pursuant to clause (b)(i) or (xii) below; and

(v)      an amount equal to the aggregate net non-cash loss on dispositions by Borrower and its Restricted Subsidiaries during such period (other than dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; minus

(i)       the amount of any cash Consolidated Tax Expense paid or payable by Borrower and its Restricted Subsidiaries with respect to such Excess Cash Flow Period and for which, to the extent required under GAAP, reserves have been established;

(ii)      [reserved];

(iii)     the amount of Debt Service for such Excess Cash Flow Period;

(iv)     amounts actually paid and applied to scheduled amortization of the Loans in accordance with Section 2.09;

(v)     the sum of (i) Capital Expenditures made in cash or accrued during such Excess Cash Flow Period, to the extent funded from Internally Generated Funds, and (ii) solely with respect to any period prior to the New Incremental Loan Closing Date, cash consideration paid during such Excess Cash Flow Period to make Investments pursuant to Section 6.04(m) or (n) as in effect prior to the effectiveness of the Eighth Amendment Effective Date and acquisitions not prohibited by this Agreement to the extent financed from Internally Generated Funds;

(vi)     the increase, if any, in the Net Working Capital and long-term receivables, long-term prepaid assets and decreases in long-term deferred revenue and long-term warranty accruals from the beginning to the end of such Excess Cash Flow Period; and

(vii)    an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (including any amounts included in Consolidated Net Income pursuant to the last sentence of the definition of “Consolidated Net Income” to the extent such amounts are due but not received during such period) and cash charges included in clauses (a) through (j) of the definition of “Consolidated Net Income”;

(viii)   cash payments by Borrower and its Restricted Subsidiaries during such Excess Cash Flow Period in respect of purchase price holdbacks, earn out obligations, or long-term liabilities of Borrower and its Restricted Subsidiaries other than Indebtedness to the extent such payments are not expensed during such Excess Cash Flow Period or are not deducted in calculating Consolidated Net Income, to the extent financed with Internally Generated Funds;

(ix)     solely with respect to any period prior to the New Incremental Loan Closing Date, the amount of Dividends paid in cash by Borrower during such period not prohibited by this Agreement as in effect prior to the New Incremental Loan Closing Date), to the extent that such Dividends are financed with Internally Generated Funds;

(x)      the aggregate amount of expenditures actually made by Borrower and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees and cash restructuring charges) to the extent that such expenditures are not expensed during such period or are not deducted in calculating Consolidated Net Income, to the extent that such expenditure was financed with Internally Generated Funds;

(xi)    without duplication of amounts deducted from Excess Cash Flow in prior Excess Cash Flow Periods, the aggregate consideration required to be paid in cash or Cash Equivalents by Borrower or any of its Restricted Subsidiaries pursuant to binding contract commitments, letters of intent or purchase orders (the “Contract Consideration”), in each case, entered into prior to or during such Excess Cash Flow Period, relating to relating to Permitted Acquisitions consummated prior to the New Incremental Loan Closing Date, other Investments permitted pursuant toconsummated in accordance with Section 6.04(m) or (n) of this Agreement as in effect prior to the New Incremental Loan Closing Date for any period prior to the New Incremental Loan Closing Date or Capital Expenditures (including Capitalized Software Expenditures or other purchases of intellectual property) to be consummated or made during a subsequent Excess Cash Flow Period; provided, that to the extent the aggregate amount of Internally Generated Funds actually utilized to finance such Permitted Acquisitions, Investments (in each case, consummated prior to the New Incremental Loan Closing Date in accordance with this Agreement as in effect prior to the New Incremental Loan Closing Date) or Capital Expenditures during such Excess Cash Flow Period is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such Excess Cash Flow Period; and

(xii)    the amount of taxes (including penalties and interest) paid in cash and/or tax reserves set aside or payable (without duplication) in such Excess Cash Flow Period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such Excess Cash Flow Period.

“Excess Cash Flow Period” means (i) the period taken as one accounting period from January 1, 2018, and ending on December 31, 2018, and (ii) each fiscal year of Borrower thereafter.

“Exchange Act” means the Securities Exchange Act of 1934.

“Excluded Regulated Subsidiary” means any Subsidiary of Borrower that is prohibited by applicable Legal Requirements existing on the Closing Date or by applicable Legal Requirements or by any contractual obligation existing at the time of acquisition thereof after the Closing Date (to the extent such contractual obligation was not created in contemplation of such acquisition) for so long as such prohibition exists, in each case from guaranteeing the Credit Facilities.

“Excluded Subsidiary” means (i) any Immaterial Subsidiary, (ii) any CFC or subsidiary of a CFC, (iii) any Excluded Regulated Subsidiary, (iv) any Unrestricted Subsidiary and (v) any Subsidiary that the Administrative Agent and Borrower have determined to be designated as an Excluded Subsidiary because the cost, difficulty, burden or consequences of such Subsidiary providing a guaranty in respect of the Obligations is excessive in relation to the benefit afforded to the Secured Parties thereby.

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of, a security interest to secure such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (an “ECP”) at the time the Guarantee of such Guarantor becomes effective with respect to such related Swap Obligation.

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed by a jurisdiction as a result of such recipient being organized under the laws of, or having its principal office located in, or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such tax, or (ii) that are Other Connection Taxes, (b) in the case of a Foreign Lender (other than an Eligible Assignee pursuant to a request by Borrower under Section 2.16), any United States federal withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 2.15, (c) any withholding tax that is attributable to such Foreign Lender’s failure or inability to comply with Section 2.15(f), and (d) any United States federal withholding tax imposed as a result of FATCA.

“Executive Order” has the meaning set forth in Section 3.21.

“Existing Credit Agreement” means that certain credit agreement dated as of November 26, 2013 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof), by and among Internap Corporation f/k/a Internap Network Services Corporation, as Borrower, the guarantors from time to time party thereto, the lenders from time to time party thereto, Jefferies Finance LLC, as administrative agent and as collateral agent, Jefferies Finance LLC and PNC Capital Markets LLC, as joint lead arrangers and joint book managers, PNC Bank, National Association, as syndication agent and ING Capital LLC, as documentation agent.

“Existing Letters of Credit” means those letters of credit described on Schedule 6.01(b)(ii).

“Existing Lien” has the meaning set forth in Section 6.02(c).

“Existing Term Loan Class” has the meaning set forth in Section 2.20(a).

“Extended Term Loan Maturity Date” means with respect to any tranche of Extended Term Loans, the final maturity date applicable thereto as specified in the applicable Extension Notice accepted by the respective Extending Lender or Extending Lenders.

“Extended Term Loans” has the meaning set forth in Section 2.20(a).

“Extending Lender” has the meaning set forth in Section 2.20(a).

“Extension” has the meaning set forth in Section 2.20(a).

“Extension Amendment” has the meaning set forth in Section 2.20(a).

“Extension Date” has the meaning set forth in Section 2.20(b).

“Extension Notice” has the meaning set forth in Section 2.20(a).

“Extension Offer” has the meaning set forth in Section 2.20(a).

“Extension Series” means all Extended Term Loans that are established pursuant to the same Extension Amendments (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans provided for therein are intended to be part of any previously established Extension Series) and that provide for the same interest margins, extension fees, if any, and amortization schedule.

“Fair Market Value” means, with respect to any asset (including any Equity Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the Board of Directors or pursuant to a specific delegation of authority by such Board of Directors.

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

“FCC” means the U.S. Federal Communications Commission, or any successor agency of the federal government administering the Communications Act, including its staff acting under delegated authority.

“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1%) of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“Fee Letter” means the confidential Engagement Letter, dated March 15, 2017, among Borrower and Jefferies Finance LLC.

“Fees” means the Commitment Fees, the Administrative Agent Fees, the LC Participation Fees, the Fronting Fees and the other fees referred to in Section 2.05(d).

“Final Maturity Date” means the later of (i) the Revolving Maturity Date, (ii) the Initial Term Loan Maturity Date, (iii) each Extended Term Loan Maturity Date; (iv) the New Incremental Loan Maturity Date, and (ivv) the maturity date for each Other Loan as specified in its respective Refinancing Amendment.

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

 

“Flood Hazard Property” means a property in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

“Foreign Entity” means any entity not organized under the laws of the United States, any state thereof or the District of Columbia.

 

“Foreign Lender” means any Lender that is not a U.S. Person.

 

“Foreign Plan” means any employee benefit, deferred compensation, registered pension, or other retirement or superannuation plan, fund, program, policy, commitment, arrangement or agreement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne by any Company with respect to employees, officers or directors employed, or otherwise engaged, outside the United States and Canada.

“Foreign Subsidiary” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia.

 

“Fronting Fee” has the meaning set forth in Section 2.05(c).

 

“Funded Debt” means all Indebtedness of Borrower and its Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.

 

“Funding Default” has the meaning set forth in Section 2.16(c).

 

“GAAP” means generally accepted accounting principles in the United States, or successors thereto (e.g., subject to Section 1.04, IFRS), applied on a consistent basis. For purposes of this Agreement, a generally accepted accounting principle shall be deemed to constitute GAAP (and a change in GAAP, if applicable) on the earliest date on which it is permitted to be adopted by any Company under the Legal Requirements applicable thereto.

“Governmental Authority” means any federal, state, provincial, territorial, local or foreign (whether civil, administrative, criminal, military or otherwise) court, central bank or governmental agency, tribunal, authority, instrumentality self-regulatory organization, or regulatory body, including the FCC and any PUC, or any subdivision thereof or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers of or pertaining any government or any court, in each case whether associated with a state of the United States, the United States, a province or territory of Canada, Canada or another Foreign Entity or government (including any supra-national bodies such as the European Union or the European Central Bank).

“Governmental Real Property Disclosure Requirements” means any Legal Requirement of any Governmental Authority requiring notification of the buyer, lessee, mortgagee, assignee or other transferee of any Real Property, facility, establishment or business, or any notification, registration or filing to or with any Governmental Authority, in connection with the Disposition (including any transfer of control) of any Real Property, facility, establishment or business, as may be required under any applicable Environmental Law or of any actual or threatened presence or Release in, on, into or from the Environment, or the use, disposal or handling of Hazardous Material on, at, under, from or near the Real Property, facility, establishment or business to be sold, acquired, leased, mortgaged, assigned or transferred.

“Granting Lender” has the meaning set forth in Section 10.04(h).

“Guaranteed Obligations” has the meaning set forth in Section 7.01. Notwithstanding anything to the contrary contained herein or in any other Loan Document, in no event will Guaranteed Obligations include any Excluded Swap Obligations.

 

“Guarantees” means the guarantees issued pursuant to Article VII by the Guarantors.

“Guarantor” means each Subsidiary listed on Schedule 1.01(b), and each other Subsidiary of any Loan Party that is or becomes a party to this Agreement and the Security Documents pursuant to Section 5.11.

“Hazardous Materials” means hazardous substances, hazardous wastes, hazardous materials, polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs, asbestos or any asbestos-containing materials in any form or condition, lead-based paint, urea formaldehyde, pesticides, radon or any other radioactive materials including any source, special nuclear or by-product material, petroleum, petroleum products, petroleum-derived substances, crude oil or any fraction thereof, underground or aboveground storage tanks, whether empty or containing any substance, any mold, microbial or fungal contamination that could pose a risk to human health or the Environment or would negatively impact the condition of the Real Property or any other pollutants (including greenhouse gases), contaminants, chemicals, wastes, materials, compounds, constituents or substances, defined under, subject to regulation under, or which can give rise to liability or obligations under, any Environmental Laws.

“Incremental Term Loan” means the New Incremental Loans and any term loans made pursuant to Section 2.19.2.19 as in effect prior to the New Incremental Loan Closing Date.

“Indemnified Taxes” means Taxes other than Excluded Taxes.

“Indemnitee” has the meaning set forth in Section 10.03(b).

“Indemnitee Related Persons” has the meaning set forth in Section 10.03(b).

“Information” has the meaning set forth in Section 10.12.

“Initial Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans hereunder up to the amount set forth on Annex I or on Schedule 1 to the Assignment and Assumption pursuant to which such Lender assumed its Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The Initial Revolving Commitment shall exclude any Revolving Commitment Increase. The aggregate principal amount of the Lenders’ Initial Revolving Commitments on the Closing Date is $25,000,000.

“Initial Revolving Loans” means a Revolving Loan made pursuant to the Initial Revolving Commitment.

“Initial Term Loan Maturity Date” means with respect to the Initial Term Loans, April 6, 2022, or, if such date is not a Business Day, the first Business Day thereafter.

“Initial Term Loans” means the Term Loans made on the Closing Date pursuant to Section 2.02.

“Insolvency Laws” means the Bankruptcy Code and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar federal or state Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally, including the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) and the Civil Code of Quebec).

“Insolvency Proceeding” means (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, formal or informal moratorium, composition, marshaling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case, undertaken under United States federal or state or non-United States federal or state Legal Requirements, including any Insolvency Laws.

“Insurance Policies” means the insurance policies and coverages required to be maintained by each Loan Party that is an owner or lessee of Mortgaged Property with respect to the applicable Mortgaged Property pursuant to Section 5.04 and all renewals and extensions thereof.

“Insurance Requirements” means, collectively, all provisions of the Insurance Policies, all requirements of the issuer of any of the Insurance Policies and all Orders, rules, regulations and any other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) binding upon any Loan Party that is an owner of Mortgaged Property and applicable to the Mortgaged Property or any use or condition thereof.

 

“Intellectual Property” has the meaning set forth in Section 3.06(a).

“Intercompany Note” means the intercompany demand promissory note substantially in the form of Exhibit D.

“Interest Election Request” means a request by Borrower to convert or continue a Revolving Borrowing or Term Borrowing in accordance with Section 2.08(b), substantially in the form of Exhibit E.

“Interest Payment Date” means (a) with respect to any ABR Loan (including Swingline Loans), the last Business Day of each March, June, September and December to occur during any period in which such Loan is outstanding, (b) with respect to any Eurodollar Loan (including New Incremental Loans), the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Loan with an Interest Period of more than three (3) months’ duration, each day before the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (c) with respect to any Revolving Loan or Swingline Loan, the Revolving Maturity Date (or such earlier date on which the Revolving Commitments are terminated) and, after such maturity (or termination as the case may be), on each date on which demand for payment is made, (d) with respect to any Initial Term Loan, the Initial Term Loan Maturity Date and, after such maturity, on each date on which demand for payment is made, (e) with respect to any Extended Term Loan, the applicable Extended Term Loan Maturity Date and, after such maturity, on each date on which demand for payment is made, and (f(f) with respect to any New Incremental Loan, the New Incremental Loan Maturity Date and, after such maturity, on each date on which demand for payment is made, and (g) with respect to any PIK Interest, the Interest Payment Date set forth in the foregoing clause (a), (b), (d) or (e), as applicable, with respect to the Term Loan to which such PIK Interest relates.

“Interest Period” means, (a) with respect to any Euorodollar Borrowing of the New Incremental Loans, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one month thereafter (unless such subsequent calendar month does not have a numerically corresponding day, in which case such Interest Period shall end on the last Business Day of such subsequent calendar month) and (b) with respect to any Eurodollar Borrowing (other than Borrowings of New Incremental Loans), the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as Borrower may elect; provided that (ain the case of (a) and (b) above, as applicable (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (bii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

“Internally Generated Funds” means funds not constituting the proceeds of any Indebtedness, Debt Issuance, Equity Issuance, Asset Sale or Casualty Event (in each case, without regard to the exclusions from the definitions thereof, other than in the case of an Asset Sale only, any Disposition of assets permitted by Sections 6.04(b), 6.06(g) or 6.06(h)).

 

“Interpolated Rate” has the meaning set forth in the definition of “LIBOR Rate.”

“Investments” has the meaning set forth in Section 6.04.

“ISP” means, with respect to any Letter of Credit, the ‘International Standby Practices 1998’ (or ‘ISP 98’) published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance of such Letter of Credit).

“Issuing Bank” means, as the context may require, (a) each of PNC Bank, National Association and any Lender reasonably acceptable to the Administrative Agent and Borrower which agrees to issue Letters of Credit hereunder, with respect to Letters of Credit issued by it; (b) any other Lender that may become an Issuing Bank pursuant to Sections 2.18(j) and (k) with respect to Letters of Credit issued by such Lender; and/or (c) collectively, all of the foregoing. Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by one or more Affiliates of such Issuing Bank (and such Affiliate shall be deemed to be an “Issuing Bank” for all purposes of the Loan Documents). In the event that there is more than one Issuing Bank at any time, references herein and in the other Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires.

“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit 3 to the Security Agreement.

“Landlord Access Agreement” means a Landlord Access Agreement, substantially in the form of Exhibit F, or such other form as may reasonably be acceptable to the Administrative Agent.

“LC Commitment” means the commitment of the Issuing Bank to issue Letters of Credit pursuant to Section 2.18; provided that at no time shall the LC Commitment exceed the Revolving Commitment. The amount of the LC Commitment shall be $15,000,000 on the Closing Date.

 

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

 

“LC Exposure” means, as at any date of determination, the sum of (a) the aggregate amount available to be drawn under all outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all Reimbursement Obligations outstanding at such time. The LC Exposure of any Revolving Lender at any time means its Pro Rata Percentage of the aggregate LC Exposure at such time. For all purposes of this Agreement and the other Loan Documents, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP (or any other equivalent applicable rule with respect to force majeure events), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

“LC Participation Fee” has the meaning set forth in Section 2.05(c).

 

“LC Request” means a request by Borrower in accordance with the terms of Section 2.18(b) and substantially in the form of Exhibit G, or such other form as shall be approved by the Issuing Bank.

 

“LC Sub-Account” means a cash collateral account maintained by the Administrative Agent for purposes of Cash Collateralization of the LC Exposure in accordance with Section 2.18(i).

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(e)       Notwithstanding any other provision of this Agreement, Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Revolving Maturity Date or in the case of the Initial Term Loans, the Initial Term Loan Maturity Date or in the case of any New Incremental Loans, the New Incremental Loan Maturity Date and in the case of any Extended Term Loans, the applicable Extended Term Loan Maturity Date, or in the case of any Other Loan, the applicable maturity date of such Other Loan as specified in the applicable Refinancing Amendment, as applicable.