sixthamendmenttoreceivab






                                                        EXECUTION VERSION                           SIXTH AMENDMENT TO THE                      RECEIVABLES FINANCING AGREEMENT        This  SIXTH  AMENDMENT  TO  THE  RECEIVABLES  FINANCING  AGREEMENT  (this “Amendment”), dated as of September 30, 2019, is entered into by and among the following  parties:         (i)   SYNEOS HEALTH RECEIVABLES LLC, as Borrower;         (ii)  SYNEOS HEALTH, LLC (f/k/a INC RESEARCH, LLC), as initial Servicer; and         (iii) PNC BANK, NATIONAL ASSOCIATION (“PNC”), as Administrative Agent              and as Lender.         Capitalized  terms  used  but  not  otherwise  defined  herein  (including  such  terms  used  above) have the respective meanings assigned thereto in the Receivables Financing Agreement  described below.                                  BACKGROUND         A.    The parties hereto have entered into a Receivables Financing Agreement, dated as  of June 29, 2018 (as amended, restated, supplemented or otherwise modified through the date  hereof, the “Receivables Financing Agreement”).         B.    Concurrently herewith, the Borrower, the Administrative Agent, the Lender and  PNC Capital Markets LLC are entering into that certain Amended and Restated Fee Letter, dated  as of the date hereof (the “Fee Letter”).         C.    The parties hereto desire to amend the Receivables Financing Agreement as set  forth herein.         NOW  THEREFORE,  with  the  intention  of  being  legally  bound  hereby,  and  in  consideration of the mutual undertakings expressed herein, each party to this Amendment hereby  agrees as follows:         SECTION 1.  Amendments to the Receivables Financing Agreement.  The Receivables  Financing Agreement is hereby amended to incorporate the changes shown on the marked pages  of the Receivables Financing Agreement attached hereto as Exhibit A.         SECTION 2.  Representations  and  Warranties  of  the  Borrower  and  the  Servicer.   The  Borrower and the Servicer hereby represent and warrant to each of the parties hereto as of the  date hereof as follows:               (a)   Representations  and  Warranties.   The  representations  and  warranties        made by  it in  the  Receivables  Financing Agreement  and  each of the other Transaction        Documents to which it is a party are true and correct as of the date hereof.    733531005 18569090 





 






            (b)   Enforceability.  The execution and delivery by it of this Amendment, and        the performance of its obligations under this Amendment, the Fee Letter, the Receivables        Financing  Agreement  (as  amended  hereby)  and  the  other  Transaction  Documents  to        which it is a party are within its organizational powers and have been duly authorized by        all  necessary  action  on  its  part,  and  this  Amendment,  the  Fee  Letter,  the  Receivables        Financing  Agreement  (as  amended  hereby)  and  the  other  Transaction  Documents  to        which  it  is  a  party  are  (assuming  due  authorization  and  execution  by  the  other  parties        thereto)  its  valid  and  legally  binding  obligations,  enforceable  in  accordance  with  their        terms,  except  (i)  as  such  enforceability  may  be  limited  by  applicable  bankruptcy,        insolvency, reorganization, moratorium or other similar laws affecting the enforcement of        creditors’  rights  generally  and  (ii)  as  such  enforceability  may  be  limited  by  general        principles  of  equity,  regardless  of  whether  such  enforceability  is  considered  in  a        proceeding in equity or at law.               (c)   No Event of Default.  After giving effect to this Amendment, no Event of        Default or Unmatured Event of Default has occurred and is continuing, or would occur as        a  result  of  this  Amendment,  the  Fee  Letter  or  the  transactions  contemplated  hereby  or        thereby.         SECTION 3.  Effect  of  Amendment;  Ratification.   All  provisions  of  the  Receivables  Financing Agreement and the other Transaction Documents, as expressly amended and modified  by  this  Amendment,  shall  remain  in  full  force  and  effect.   After  this  Amendment  becomes  effective,  all  references  in  the  Receivables  Financing  Agreement  (or  in  any  other  Transaction  Document) to “this Receivables Financing Agreement”, “this Agreement”, “hereof”, “herein” or  words of similar effect referring to the Receivables Financing Agreement shall be deemed to be  references  to  the  Receivables  Financing  Agreement  as  amended  by  this  Amendment.  This  Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement  any  provision  of  the  Receivables  Financing  Agreement  other  than  as  set  forth  herein.   The  Receivables  Financing  Agreement,  as  amended  by  this  Amendment,  is  hereby  ratified  and  confirmed in all respects.         SECTION 4.  Effectiveness.   This  Amendment  shall  become  effective  as  of  the  date  hereof, subject to the conditions precedent that the Administrative Agent shall have received the  following:                 (a)   counterparts to this Amendment executed by each of the parties hereto;                (b)   counterparts to the Fee Letter executed by each of the parties thereto and        confirmation that all fees owing under the Fee Letter have been paid in accordance with        its terms; and               (c)   such opinions of counsel, certificates, resolutions and other deliverables,        in each case, in form  and substance acceptable to the Administrative Agent as may be        reasonably requested by the Administrative Agent prior to the date hereof.         SECTION 5.  Severability.  Any provisions of this Amendment which are prohibited or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such   733531005 18569090                    2 





 






prohibition  or  unenforceability  without  invalidating  the  remaining  provisions  hereof,  and  any  such  prohibition  or  unenforceability  in  any  jurisdiction  shall  not  invalidate  or  render  unenforceable such provision in any other jurisdiction.         SECTION 6.  Transaction  Document.   This  Amendment  shall  be  a  Transaction  Document for purposes of the Receivables Financing Agreement.         SECTION 7.  Counterparts.   This  Amendment  may  be  executed  in  any  number  of  counterparts, each of which when so executed shall be deemed to be an original and all of which  when  taken  together  shall  constitute  one  and  the  same  agreement.   Delivery  of  an  executed  counterpart hereof by facsimile or other electronic means shall be equally effective as delivery of  an originally executed counterpart.         SECTION 8.  GOVERNING LAW AND JURISDICTION.          (a)   THIS  AMENDMENT,  INCLUDING  THE  RIGHTS  AND  DUTIES  OF  THE  PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE  WITH,  THE  LAWS  OF  THE  STATE  OF  NEW  YORK  (INCLUDING  SECTIONS  5-1401  AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK,  BUT  WITHOUT  REGARD  TO  ANY  OTHER  CONFLICTS  OF  LAW  PROVISIONS  THEREOF).         (b)   EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO (I) WITH  RESPECT  TO  THE  BORROWER  AND  THE  SERVICER,  THE  EXCLUSIVE  JURISDICTION,  AND  (II)  WITH  RESPECT  TO  EACH  OF  THE  OTHER  PARTIES  HERETO, THE NON-EXCLUSIVE JURISDICTION, IN EACH CASE, OF ANY NEW YORK  STATE  OR  FEDERAL  COURT  SITTING  IN  NEW  YORK  CITY,  NEW  YORK  IN  ANY  ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT,  AND  EACH  PARTY  HERETO  HEREBY  IRREVOCABLY  AGREES  THAT  ALL  CLAIMS  IN  RESPECT  OF  SUCH  ACTION  OR  PROCEEDING  (I)  IF  BROUGHT  BY  THE  BORROWER, THE SERVICER OR ANY AFFILIATE THEREOF, SHALL BE HEARD AND  DETERMINED,  AND  (II)  IF  BROUGHT  BY  ANY  OTHER  PARTY  TO  THIS  AMENDMENT, MAY BE HEARD AND DETERMINED, IN EACH CASE, IN SUCH NEW  YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL  COURT.   NOTHING  IN  THIS  SECTION  8  SHALL  AFFECT  THE  RIGHT  OF  THE  ADMINISTRATIVE AGENT OR ANY OTHER CREDIT PARTY TO BRING ANY ACTION  OR PROCEEDING AGAINST THE BORROWER OR THE SERVICER OR ANY OF THEIR  RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.  EACH OF THE  BORROWER  AND  THE  SERVICER  HEREBY  IRREVOCABLY  WAIVES,  TO  THE  FULLEST  EXTENT  IT  MAY  EFFECTIVELY  DO  SO,  THE  DEFENSE  OF  AN  INCONVENIENT  FORUM  TO  THE  MAINTENANCE  OF  SUCH  ACTION  OR  PROCEEDING.   THE PARTIES HERETO AGREE  THAT A  FINAL  JUDGMENT  IN  ANY  SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED  IN  OTHER  JURISDICTIONS  BY  SUIT  ON  THE  JUDGMENT  OR  IN  ANY  OTHER  MANNER PROVIDED BY LAW.    733531005 18569090                    3 





 






      SECTION 9.  Section Headings.  The various headings of this Amendment are included  for convenience only and shall not affect the meaning or interpretation of this Amendment, the  Receivables Financing Agreement or any provision hereof or thereof.         SECTION 10. Performance  Guaranty  Ratification.   After  giving  effect  to  this  Amendment and the transactions contemplated by this Amendment, all of the provisions of the  Performance  Guaranty  shall  remain  in  full  force  and  effect  and  the  Performance  Guarantor  hereby ratifies  and  affirms  the Performance  Guaranty and  acknowledges  that  the Performance  Guaranty has continued and shall continue in full force and effect in accordance with its terms.                              [SIGNATURE PAGES FOLLOW]    733531005 18569090                    4 





 












 












 












 












 






                                  Exhibit A                                     (attached)   733531005 18569090 





 






                                                        EXECUTION VERSION                   EXHIBIT A to SIXTH AMENDMENT, dated as of September 30, 2019                                                CONFORMED COPY INCLUDES                                   FIRST AMENDMENT, dated as of August 1, 2018                                SECOND AMENDMENT, dated as of August 29, 2018                                 THIRD AMENDMENT, dated as of October 25, 2018                                FOURTH AMENDMENT, dated as of January 2, 2019                                     FIFTH AMENDMENT, dated as of July 25, 2019                      RECEIVABLES FINANCING AGREEMENT                              Dated as of June 29, 2018                                   by and among                       SYNEOS HEALTH RECEIVABLES LLC,                                   as Borrower,                THE PERSONS FROM TIME TO TIME PARTY HERETO,                                   as Lenders,                       PNC BANK, NATIONAL ASSOCIATION,                              as Administrative Agent,                              SYNEOS HEALTH, LLC,                                as initial Servicer,                                       and                           PNC CAPITAL MARKETS LLC,                               as Structuring Agent   733531075 18569090





 






      “Base Rate” means, for any day and any Lender, a fluctuating interest rate per annum as shall be in effect from time to time, which rate shall be at all times equal to the higher of:              (a)   the rate of interest in effect for such day as publicly announced from time       to  time  by  such  Lender  or  its  Affiliate  as  its  “reference  rate”  or  “prime  rate”,  as       applicable.  Such “reference rate” or “prime rate” is set by the applicable Lender or its       Affiliate  based  upon  various  factors,  including  such  Person’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,  and  is  not       necessarily the lowest rate charged to any customer; and              (b)   0.50% per annum above the latest Federal Funds Rate.        “Beneficial Owner” means, for the Borrower, each of the following:  (a) each individual, if any, who, directly or indirectly, owns 25% or more of the Borrower’s Capital Stock; and (b) a single individual with significant responsibility to control, manage, or direct the Borrower.        “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.        “Borrower” has the meaning specified in the preamble to this Agreement.        “Borrower Indemnified Amounts” has the meaning set forth in Section 13.01(a).        “Borrower Indemnified Party” has the meaning set forth in Section 13.01(a).        “Borrower  Material  Adverse  Effect”  means  a  material  adverse  effect  on  any  of  the following:        (a)   the assets, operations, business or financial condition of the Borrower;        (b)   the ability of the Borrower to perform its obligations under this Agreement or any other Transaction Document to which it is a party;        (c)   the  validity  or  enforceability  of  this  Agreement  or  any  other  Transaction Document to which the Borrower is a party, or the validity, enforceability, value or collectability of any material portion of the Pool Receivables;        (d)   the  status,  perfection,  enforceability  or  priority  of  the  Administrative  Agent’s security interest in the Collateral; or        (e)   the rights and remedies of any Credit Party under the Transaction Documents or associated with its respective interest in the Collateral.        “Borrower  Obligations”  means  all  present  and  future  indebtedness,  reimbursement obligations,  and  other  liabilities  and  obligations  (howsoever  created,  arising  or  evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Borrower to any  Credit  Party,  Borrower  Indemnified  Party  and/or  any Affected Person,  arising  under  or  in connection  with  this  Agreement  or  any  other  Transaction  Document  or  the  transactions 733531075 18569090                     4





 






(b) if this definition of “Business Day” is utilized in connection with Adjusted LIBOR or LMIR, dealings are carried out in the London interbank market.        “Capital” means, with respect to any Lender, the aggregate amounts paid to, or on behalf of, the Borrower  in  connection with  all Loans  made  by  such  Lender pursuant  to  Article II, as reduced  from  time  to  time  by  Collections  distributed  and  applied  on  account  of  such  Capital pursuant  to  Section  4.01;  provided,  that  if  such  Capital  shall  have  been  reduced  by  any distribution and thereafter all or a portion of such distribution is rescinded or must otherwise be returned  for  any  reason,  such  Capital  shall  be  increased  by  the  amount  of  such  rescinded  or returned distribution as though it had not been made.        “Capital Stock” means, with respect to any Person, any and all common shares, preferred shares,  interests,  participations,  rights  in  or  other  equivalents  (however  designated)  of  such Person’s  capital  stock,  partnership  interests,  limited  liability  company  interests,  membership interests or other equivalent interests and any rights (other than debt securities convertible into or exchangeable  for capital stock), warrants  or  options  exchangeable  for  or  convertible  into such capital stock or other equity interests.        “Certificate of Beneficial Ownership” means, for the Borrower, a certificate in form and substance acceptable to the Administrative Agent (as amended or modified by the Administrative Agent  from  time  to  time  in  its  sole  discretion),  certifying,  among  other  things,  the  Beneficial Owner of the Borrower.        “Change in Control” means the occurrence of any of the following:              (a)   Syneos Health ceases to own, directly, 100% of the issued and outstanding       Capital Stock of the Borrower free and clear of all Adverse Claims;              (b)   Parent  ceases  to  own,  directly  or  indirectly,  100%  of  the  issued  and       outstanding Capital Stock of any Originator or the Servicer;              (c)   any  Adverse  Claim  should  exist  with  respect  to  any  Intercompany  Loan       Agreement or any Intercompany Loan;              (d)   the  acquisition  by  any  Person  or  group  (within  the  meaning  of  Section       13(d)(3)  or  Section  14(d)(2)  of  the  Exchange  Act),  including  any  group  acting  for  the       purpose  of  acquiring,  holding  or  disposing  of  Securities  (within  the  meaning  of  Rule       13d-5(b)(1)  under  the  Exchange  Act,  but  excluding  any  employee  benefit  plan  and/or       Person acting as the trustee, agent or other fiduciary or administrator therefor), other than       one or more Permitted Holders, of Capital Stock representing more than the greater of (x)       35% of the total voting power of all of the outstanding voting Capital Stock of Parent and       (y) the percentage of the total voting power of all of the outstanding voting Capital Stock       of Parent owned, directly or indirectly, beneficially by the Permitted Holders; or              (e)   the  occurrence  of  a  “change  of  control”  (or  similar  event,  however       defined) under the Credit Agreement (or any refinancing thereof).  733531075 18569090                     6





 






      “Commencement Date” means the date, if any, identified as the “Commencement Date” in a writing delivered by the Borrower to the Administrative Agent; provided, however, that the “Commencement  Date”  shall  be  deemed  to  be  the  date  of  the  initial  Credit  Extension  if  not previously identified as a date on or prior to the date of the initial Credit Extension.        “Commitment”  means,  with  respect  to  any Lender, the  maximum aggregate amount of Capital which such Person is obligated to lend or pay hereunder on account of all Loans, on a combined  basis,  as  set  forth  on  Schedule  I  or  in  such  other  agreement  pursuant  to  which  it became  a  Lender,  as  such  amount  may  be  modified  in  connection  with  any  subsequent assignment  pursuant  to  Section  14.03  or  in  connection  with  a  reduction  in  the  Facility  Limit pursuant to Section 2.02(e).  If the context so requires, “Commitment” also refers to a Lender’s obligation to make Loans hereunder in accordance with this Agreement.        “Concentration Percentage” means (i) for any Group A Obligor, 25.0%, (ii) for any Group B Obligor, 15.0%, (iii) for any Group C Obligor, 10.0% and (iv) for any Group D Obligor, 5.0%.        “Concentration Reserve Percentage” means, at any time of determination, the largest of: (a) the sum of the four (4) largest Obligor Percentages of the Group D Obligors, (b) the sum of the  two  (2)  largest  Obligor  Percentages  of  the  Group  C  Obligors  and  (c)  the  largest  Obligor Percentage of the Group B Obligors.        “Contract”  means,  with  respect  to  any  Receivable,  any  and  all  contracts,  instruments, agreements, leases, invoices, notes or other writings pursuant to which such Receivable arises or that  evidence  such  Receivable  or  under  which  an  Obligor  becomes  or  is  obligated  to  make payment in respect of such Receivable.        “Covered Entity” means (a) each of Borrower, the Servicer, each Originator, the Parent and each of the Parent’s Subsidiaries and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above.  For purposes of this definition, control of a Person shall mean the direct or indirect (x) ownership of, or power to vote, 35% or more of the issued and  outstanding  equity  interests  having  ordinary  voting  power  for  the  election  of  directors  of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.        “Credit Agreement” means that certain Credit Agreement, dated as of August 1, 2017, as amended,  by  and  among  Syneos  Health,  Inc.  f/k/a  INC  Research  Holdings,  Inc.,  as  the administrative borrower, the other borrowers party thereto, the financial institutions party thereto as  lenders, JPMorgan  Chase  Bank,  N.A.  (as  successor  agent  to Credit  Suisse  AG,  Cayman Islands  Branch),  as  administrative  agent,  the  other  financial  institutions  party  thereto,  as  joint lead arrangers and joint bookrunners.        “Credit and Collection Policy” means, as the context may require, those receivables credit and  collection  policies  and  practices  of  the  Originators  in  effect  on  the  Closing  Date  and described in Exhibit F, as modified in compliance with this Agreement.        “Credit Extension” means the making of any Loan.  733531075 18569090                     8





 






            (e)   the excess (if any) of (i) the aggregate Outstanding Balance of all Eligible       Receivables,  the  Obligors  of  which  are  Eligible  Tier  II  Non-OECD  Country  Obligors,       over (ii) the product of (x) 1.0%, multiplied by (y) the aggregate Outstanding Balance of       all Receivables then in the Receivables Pool; plus              (f)   the excess (if any) of (i) the aggregate Outstanding Balance of all Eligible       Receivables that have remained unpaid for more than 60 days but less than 91 days after       the original due date of such Receivable, over (ii) the product of (x) 15.0%, multiplied by       (y) the aggregate initial Outstanding Balance of all Pool Receivables (other than Unbilled       Receivables)  generated  by  the  Originators  during  the  month  that  is  three  (3)  Fiscal       Months before the then-current Fiscal Month as of the date of determination; plus              (g)   the excess (if any) of (i) the aggregate Outstanding Balance of all Eligible       Receivables that have a due date which is more than 90 days but less than 121 days after       the original invoice date of such Receivable, over (ii) the product of (x) 10.0%, multiplied       by (y) the aggregate Outstanding Balance of all Receivables then in the Receivables Pool.         “Exchange Act” means the Securities Exchange Act of 1934, as amended or otherwise modified from time to time.        “Excluded Receivable” means any Receivable (without giving effect to the proviso to the definition thereto) the Obligor of which is Pfizer Inc. or any Subsidiary thereof.        “Excluded Taxes” means any of the following Taxes imposed on or with respect to an Affected Person or required to be withheld or deducted from a payment to an Affected Person: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch  profits  Taxes,  in  each  case,  (i)  imposed  as  a  result  of  such  Affected  Person  being organized  under  the  laws  of,  or  having  its  principal  office  or,  in  the  case  of  any  Lender,  its applicable  lending  office  located  in,  the  jurisdiction  imposing  such  Tax  (or  any  political subdivision  thereof) or (ii) that  are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Loans or Commitment pursuant to a law in effect on the date on which (i) such Lender makes a Loan or its Commitment or (ii) such Lender changes its lending office, except in each case to the extent that amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or  to  such  Lender  immediately  before  it  changed  its  lending  office  and  (c)  any  U.S.  federal withholding Taxes imposed pursuant to FATCA.        “Facility Limit” means $250,000,000275,000,000 as reduced from time to time pursuant to Section 2.02(e).  References to the unused portion of the Facility Limit shall mean, at any time of determination, an amount equal to (x) the Facility Limit at such time, minus (y) the Aggregate Capital at such time.        “FATCA”  means  Sections  1471  through  1474  of  the  Code,  as  of  the  date  of  this Agreement  (or  any  amended  or  successor  version  that  is  substantively  comparable  and  not materially  more  onerous  to  comply  with),  any  current  or  future  regulations  or  official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code,  733531075 18569090                   16





 






crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is  reasonably  likely  that  any  aspect  of  its  operations  is  in  actual  or  probable  violation  of  any Anti-Terrorism Law.        “Reportable Event” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Pension Plan.        “Representatives” has the meaning set forth in Section 14.06(c).        “Required Capital Amount” means, as of any date of determination, an amount equal to the product of (i) the Loss Reserve Percentage at such time times (ii) the Net Receivables Pool Balance at such time.        “Restricted Payments” has the meaning set forth in Section 8.01(r).        “Returned  Goods”  means  all  right,  title  and  interest  in  and  to  returned,  repossessed  or foreclosed goods and/or merchandise the sale of which gave rise to a Receivable; provided that such  goods  shall  no  longer  constitute  Returned  Goods  after  a  Deemed  Collection  has  been deposited  in  a  Collection  Account  with  respect  to  the  full  Outstanding  Balance  of  the  related Receivables.        “S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC  business,  and  any  successor  thereto  that  is  a  nationally  recognized  statistical  rating organization.        “Sanctioned Country” means a country subject to a sanctions program maintained under any Anti-Terrorism Law, including any such country identified on the list maintained by OFAC and        available      at:        http://www.treasury.gov/resource-center/sanctions/ Programs/Pages/Programs.aspx, or as otherwise published from time to time        “Sanctioned Person”  (i) A person named on the list of “Specially Designated Nationals” or  “Blocked  Persons”  maintained  by  OFAC  available  at:  http://www.treasury.gov/ resource-center/sanctions/SDN-List/Pages/default.aspx,  or  as  otherwise  published  from  time  to time,  (ii)  (A)  an  agency  of  the  government  of  a  Sanctioned  Country,  (B)  an  organization controlled  by  a  Sanctioned  Country  or  (C)  a  person  resident  in  a  Sanctioned  Country,  to  the extent  subject  to  a  sanctions  program  administered  by  OFAC,  or  (iii)  any  individual  person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned  or  debarred  person,  group,  regime,  entity  or  thing,  or  subject  to  any  limitations  or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.        “Scheduled Termination Date” means June 29, 2020.September 30, 2021.        “SEC”  means  the  U.S.  Securities  and  Exchange  Commission  or  any  governmental agencies substituted therefor.        “Secured Parties” means  each Credit  Party, each Borrower Indemnified Party and each Affected Person. 733531075 18569090                   28





 






      “Servicer” has the meaning set forth in the preamble to this Agreement.        “Servicer’s Account” means the deposit account with an account number ending in 4824 maintained by the Servicer or its Affiliate at Bank of America, N.A.        “Servicer Indemnified Amounts” has the meaning set forth in Section 13.02(a).        “Servicer Indemnified Party” has the meaning set forth in Section 13.02(a).        “Servicing Fee” means the fee referred to in Section 9.06(a) of this Agreement.        “Servicing Fee Rate” means the rate referred to in Section 9.06(a) of this Agreement.        “Settlement Date” means with respect to any Portion of Capital for any Interest Period or any Interest or Fees, (i) prior to the Termination Date and so long as no Event of Default has occurred and is continuing, the Monthly Settlement Date and (ii) on and after the Termination Date or if an Event of Default has occurred and is continuing, each day selected from time to time by the Administrative Agent (with the consent or at the direction of the Majority Lenders) (it  being understood that the Administrative Agent (with the consent or at the direction of the Majority  Lenders)  may  select  such  Settlement Date to  occur as  frequently as  daily),  or,  in the absence of such selection, the Monthly Settlement Date.        “Settlement  Item”  means  (i)  each  check  or  other  payment  order  drawn  on  or  payable against  any  Linked  Account,  which  any  Collection  Account  Bank  takes  for  deposit  or  value, cashes or exchanges for a cashier’s check or official check in the ordinary course of business, and which  is  presented  for  settlement  against  any  Collection  Account,  (ii)  each  check  or  other payment  order  drawn  on  or  payable  against  any  Collection  Account,  which  any  Collection Account  Bank  takes  for  deposit  or  value,  assures  payment  pursuant  to  a  banker’s  acceptance, cashes or exchanges for a cashier’s check or official check in the ordinary course of business, (iii) each  ACH  credit  entry  initiated  by  any  Collection  Account  Bank,  as  originating  depository financial institution, on behalf of Borrower, as originator and (iv) any other payment order drawn on or payable against any Collection Account.        “Settlement Item Amounts” means the face amount of each Settlement Item.        “Sixth Amendment Closing Date” means September 30, 2019.        “Solvent” means, with respect to any Person and as of any particular date, (i) the present fair market value (or present fair saleable value) of the assets of such Person is not less than the total amount required to pay the probable liabilities of such Person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured, (ii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business, (iii) such Person is  not  incurring  debts  or  liabilities  beyond  its  ability  to  pay  such  debts  and  liabilities  as  they mature and (iv) such Person is not engaged in any business or transaction, and is not about to engage in any business or transaction, for which its property would constitute unreasonably small capital  after  giving  due  consideration  to  the  prevailing  practice  in  the  industry  in  which  such Person is engaged. 733531075 18569090                   29





 






            (u)   Taxes.  The Borrower has (i) timely filed all tax returns (federal, state and local) required to be filed by it and (ii) paid, or caused to be paid, all taxes, assessments and other governmental  charges,  if  any,  other  than  taxes,  assessments  and  other  governmental  charges being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP, except in each case to the extent that such failure to file or pay could not reasonably be expected to have a Borrower Material Adverse Effect.              (v)   Tax Status.  The Borrower (i) is, and shall at all relevant times continue to be, a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal  income  tax  purposes  that  is  wholly  owned  by  a  “United  States  person”  (within  the meaning  of  Section 7701(a)(30) of the  Code)  and  (ii)  is  not and will  not at  any relevant  time become an association (or publicly traded partnership) taxable as an association for U.S. federal income  tax  purposes.   The  Borrower  is  not  subject  to  any  Tax  in  any  jurisdiction  outside  the United States.              (w)   Opinions.  The facts regarding the Borrower, the Servicer, each Originator, the  Performance  Guarantor,  the  Receivables,  the  Related  Security  and  the  related  matters  set forth or assumed in each of the opinions of counsel delivered in connection with this Agreement and the Transaction Documents are true and correct in all material respects.              (x)   Other Transaction Documents.  Each representation and warranty made by the Borrower under each other Transaction Document to which it is a party is true and correct in all material respects as of the date when made.              (y)   Liquidity Coverage Ratio.   The Borrower has not, does not and will not during this Agreement issue any LCR Security.  The Borrower further represents and warrants that its assets and liabilities are consolidated with the assets and liabilities of Parent for purposes of GAAP.              (z)   No  Linked  Accounts.   Except  for  the  Servicer’s  Account,  there  are  no Linked Accounts with respect to any Collection Account.              (aa)  Beneficial  Ownership  Regulation. As  of  the  Sixth  Amendment  Closing Date, the Borrower is an entity that is organized under the laws of the United States or of any state and at least 51% of whose common stock or analogous equity interest is owned directly or indirectly  by  a  company  listed  on  the  New  York  Stock  Exchange  or  the  American  Stock Exchange or designated as a NASDAQ National Market Security listed on the NASDAQ stock exchange and is excluded on that basis from the definition of “Legal Entity Customer” as defined in the Beneficial Ownership Regulation.        Notwithstanding  any  other  provision  of  this  Agreement  or  any  other  Transaction Document, the representations and warranties contained in this Section shall be continuing, and remain in full force and effect until the Final Payout Date.        SECTION 7.02.  Representations and Warranties of the Servicer.  The Servicer represents and warrants to each Credit Party as of the Closing Date, on each Settlement Date and on each day that a Credit Extension or Release shall have occurred:  733531075 18569090                   55





 






            (x)   Taxes. The Borrower will (i) timely file all tax returns (federal, state and local) required to be filed by it and (ii) pay, or cause to be paid, all taxes, assessments and other governmental  charges,  if  any,  other  than  taxes,  assessments  and  other  governmental  charges being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP, except in each case to the extent that the failure to file or pay could not reasonably be expected to have a Borrower Material Adverse Effect.              (y)   Borrower’s  Tax  Status.   The  Borrower  will  remain  a  wholly-owned subsidiary of a United States person (within the meaning of Section 7701(a)(30) of the Code) and not be subject to withholding under Section 1446 of the Code. No action will be taken that would cause the Borrower to (i) be treated other than as a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax purposes or (ii) become an association taxable as a corporation or a publicly traded partnership taxable as a corporation for U.S.  federal  income  tax  purposes.   The  Borrower  shall  not  become  subject  to any Tax  in any jurisdiction outside the United States.              (z)   Minimum  Funding  Threshold.   The  Borrower  shall  cause  the  Aggregate Capital to exceed the Minimum Funding Threshold at all times.              (aa)  Liquidity  Coverage  Ratio.   The  Borrower  shall  not  issue  any  LCR Security.              (bb)  Linked Accounts.  Except for the Servicer’s Account, the Borrower shall not  permit  any  Linked  Account  to  exist  with  respect  to  any  Collection  Account;  provided, however, that if so instructed by the Administrative Agent (in its sole discretion) at any time if a Ratings Event has occurred and is continuing, the Borrower shall cause the Servicer’s Account to cease  being  a  Linked  Account  promptly,  but  not  later  than  2  Business  Days  following  the Borrower’s or the Servicer’s receipt of such instruction.              (cc)  Beneficial  Ownership Regulation.   Promptly  following  any  change  that would  result  in  a  change  to  the  status  as  an  excluded “Legal  Entity  Customer”  under  (and  as defined in) the Beneficial Ownership Regulation, the Borrower shall execute and deliver to the Administrative  Agent  a  Certification  of  Beneficial  Owner(s)  complying  with  the  Beneficial Ownership Regulation, in form and substance reasonably acceptable to the Administrative Agent.              (dd)  (cc) Other  Additional  Information.  The  Borrower  will  provide  to  the Administrative Agent and the Lenders such information and documentation as may reasonably be requested  by  the  Administrative  Agent  or  any  Lender  from  time  to  time  for  purposes  of compliance by the Administrative Agent or such Lender with applicable laws (including without limitation the PATRIOT Act and other “know your customer” and anti-money laundering rules and regulations), and any policy or procedure implemented by the Administrative Agent or such Lender to comply therewith.        SECTION 8.02.  Covenants of the Servicer.  At all times from the Closing Date until the Final Payout Date:   733531075 18569090                   67





 






                                SCHEDULE I                                 Commitments   PNC Bank, National Association Party                       Capacity                   Commitment PNC Bank, National Association Lender                  $250,000,000275,000,000                                    Schedule I-  1 733531075 18569090