exhibit101






1  Exhibit 10.1  Execution Version  AMENDMENT NO. 9  TO THE CREDIT AGREEMENT  AMENDMENT NO. 9 TO THE CREDIT AGREEMENT, dated as of November 9, 2022 (this  “Agreement”), by and among each of the Lenders signatory hereto constituting the Required Lenders (each  as defined in the Credit Agreement, as defined below), the Borrower (as defined below), Holdings (as  defined below), each other Guarantor (as defined in the Credit Agreement) as of the date hereof, Owl Rock  Capital Corporation (“Owl Rock”), in its capacities as the administrative agent and collateral agent (in such  capacities, the “Administrative Agent”).  WHEREAS, reference is hereby made to the Credit Agreement, dated as of September 13, 2019  (as amended by Amendment No. 1 to the Credit Agreement and Incremental Facility Amendment, dated as  of March 20, 2020, Incremental Facility Agreement and Technical Amendment No. 2 to Credit Agreement,  dated as of May 7, 2020, Incremental Facility Agreement No. 3, dated as June 11, 2020, Amendment No.  4 to the Credit Agreement and Incremental Facility Agreement, dated as May 7, 2021, Amendment No. 5  to Credit Agreement and Incremental Facility Agreement, dated as of June 11, 2021, Amendment No. 6 to  the Credit Agreement and Incremental Facility Agreement, dated as of November 10, 2021, Amendment  No. 7 to Credit Agreement, dated as of March 14, 2022, Amendment No. 8 to the Credit Agreement, dated  as of August 12, 2022, and as further amended, amended and restated, supplemented or otherwise modified  from time to time prior to the date hereof, the “Credit Agreement”), among Blizzard Midco, LLC, a  Delaware limited liability company (“Holdings”), Norvax, LLC, a Delaware limited liability company (the  “Borrower”), the Lenders from time to time party thereto, the Administrative Agent and the other parties  party thereto;  WHEREAS, the Borrower desires to amend the terms of the Credit Agreement to, among other  things, modify the maximum Total Net Leverage Ratios set forth in Section 6.13(a) of the Credit  Agreement;  WHEREAS, in accordance with Section 9.02 of the Credit Agreement, Holdings, the Borrower and  the Required Lenders have agreed to amend the Credit Agreement, on the terms and subject to the  conditions, in each case, set forth herein; and  NOW, THEREFORE, the parties hereto agree as follows:  Section 1 Defined Terms; References.  (a) Unless otherwise specifically defined herein, each term used herein which is defined in the  Credit Agreement has the meaning assigned to such term in the Amended Credit Agreement (as defined  below).  The rules of construction and other interpretive provisions specified in Sections 1.03, 1.04, 1.08,  1.09 and 1.11 of the Amended Credit Agreement shall apply to this Agreement, including terms defined in  the preamble and recitals hereto.   (b) As used in this Agreement, the following terms have the meanings specified below:  “Agreement” shall have the meaning provided in the preamble hereto.  “Amended Credit Agreement” shall mean the Credit Agreement, as amended by this  Agreement.  





 






2  “Amendment No. 9 Effective Date” shall have the meaning provided in Section 7 hereof.  “Borrower/Lender Documents” shall have the meaning provided in Section 9 hereof.  “Claim” shall have the meaning provided in Section 8 hereof.  “Releasee” shall have the meaning provided in Section 8 hereof.  “Releasing Party” shall have the meaning provided in Section 8 hereof.  Section 2. Amendment.  Pursuant to Section 9.02 of the Credit Agreement, the Required  Lenders, Holdings and the Borrower hereby agree that, effective on the Amendment No. 9 Effective Date,  the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner  as the following example: stricken text) and to add the double-underlined text (indicated textually in the  same manner as the following example: added double-underlined text) as set forth in the pages of the  Amended Credit Agreement attached as Exhibit A hereto.  Section 3. Effect of Agreement; Reaffirmation; Reservation of Rights; Etc.  (a) Except as  expressly set forth herein or in the Amended Credit Agreement, this Agreement shall not by implication or  otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or  the Agents under the Credit Agreement or under any other Loan Document and shall not alter, modify,  amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in  the Credit Agreement or any other provision of the Credit Agreement or of any other Loan Document, all  of which are ratified and affirmed in all respects and shall continue in full force and effect.  Without limiting  the foregoing, after giving effect to the Agreement, (i) each Loan Party acknowledges and agrees that (A)  each Loan Document to which it is a party is hereby confirmed and ratified and shall remain in full force  and effect according to its respective terms (in the case of the Credit Agreement, as amended hereby) and  (B) the Security Documents to which it is a party to, and all of the Collateral does, and in each case shall  continue to, secure the payment of all Loan Document Obligations on the terms and conditions set forth in  such Security Documents, and hereby ratifies the security interests granted by it pursuant to such Security  Documents and (ii) each Guarantor hereby confirms and ratifies its continuing unconditional obligations as  Guarantor under each Guarantee to which it is a party. The parties hereto acknowledge and agree that the  amendment of the Credit Agreement pursuant to this Agreement and all other Loan Documents amended  and/or executed and delivered in connection herewith shall not constitute a novation of the Credit  Agreement and the other Loan Documents as in effect prior to the Amendment No. 9 Effective Date.  (b) The Lenders and the Administrative Agent reserve each and every right and remedy they  may have under the Loan Documents and under applicable law with respect to any Default or Event of  Default now or hereafter existing or otherwise, as creditors of the Loan Parties.  Nothing in this Amendment  shall be deemed to constitute a consent or waiver by the Administrative Agent or any Lender of any Default  or Event of Default, whether now existing or hereafter arising, or of any right or remedy that the  Administrative Agent and the Lenders may have under any of the Loan Documents or applicable law.  Section 4. Representations of Loan Parties.  Each of the Loan Parties hereby represents and  warrants that:  (a) the representations and warranties set forth in Article III of the Amended Credit  Agreement and in each other Loan Document shall be true and correct in all material respects on  and as of the Amendment No. 9 Effective Date, as applicable, with the same effect as though made  on and as of such date (and deeming this Agreement to be a “Loan Document” for purposes of each  such representation and warranty), except to the extent such representations and warranties  





 






3  expressly relate to an earlier date, in which case they shall be true and correct in all material respects  as of such earlier date; provided, that any such representation and warranty that is qualified by  “materiality”, “material adverse effect” or similar language shall be true and correct in all respects  (after giving effect to such qualification therein) on and as of the Amendment No. 9 Effective Date,  as applicable, with the same effect as though made on and as of such date or such earlier date, as  applicable; and  (b) as of the Amendment No. 9 Effective Date, no Default or Event of Default shall  exist or would result from the execution, delivery and performance of this Agreement.  Section 5. Governing Law. THIS AGREEMENT AND THE RIGHTS AND  OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED  AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.  Section 6. Counterparts.  This Agreement may be executed in counterparts (and by different  parties hereto on different counterparts) (including by facsimile or other electronic transmission (i.e., a  “pdf” or “tif”)), each of which shall constitute an original but all of which when taken together shall  constitute a single contract.  Delivery of an executed signature page to this Agreement by facsimile or  electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.   The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any  document to be signed in connection with this Agreement and the transactions contemplated hereby  (including without limitation Assignment and Assumptions, amendments or other Borrowing Requests,  waivers and consents) shall be deemed to include electronic signatures, the electronic matching of  assignment terms and contract formations on electronic platforms approved by the Administrative Agent,  or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or  enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the  case may be, to the extent and as provided for in any applicable law, including the Federal Electronic  Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records  Act, or any other similar state laws based on the Uniform Electronic Transactions Act. For the avoidance  of doubt, delivery of an executed counterpart of a signature page by facsimile or other electronic imaging  means (e.g. “.pdf” or “.tif”) shall be effective as delivery of a manually executed counterpart, and shall not  be considered an electronic signature.  Section 7. Conditions to Effectiveness of this Agreement.  The effectiveness of the agreements  set forth in this Agreement and of the amendments set forth in Section 2 of this Agreement, shall become  effective on the date (the “Amendment No. 9 Effective Date”) when each of the following conditions shall  have been satisfied (or waived, as applicable) and, in connection with the foregoing, the execution (which  may include telecopy or electronic transmission of a signed signature page of this Agreement) by the  Required Lenders of this Agreement:  (a) the Administrative Agent shall have received from (x) each Loan Party, and (y)  Lenders constituting the Required Lenders either (A) a counterpart of this Agreement signed on  behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may  include telecopy or electronic transmission of a signed signature page of this Agreement) that such  party has signed a counterpart of this Agreement;  (b) the Administrative Agent shall have received a certificate of the Borrower, dated  the Amendment No. 9 Effective Date, certifying that (i) the representations and warranties set forth  in Section 4 hereof shall be true and correct, and (ii) no Default or Event of Default shall exist or  would result from the execution, delivery and performance of this Agreement;  





 






4  (c) the Administrative Agent shall have received, on behalf of each Lender holding  Initial Term Loans and/or 2020 Incremental Term Loans, payment of interest on such Initial Term  Loans and 2020 Incremental Term Loans for the period from the Amendment No. 8 Effective Date  through the most recent Interest Payment Date(s) to have occurred prior to the Amendment No. 9  Effective Date applicable to each such Initial Term Loan and 2020 Incremental Term Loan,  respectively, in an amount equal to (i) the Applicable Rate (as amended by the Amended Credit  Agreement) minus (ii) the Applicable Rate as in effect immediately prior to the Amendment No. 8  Effective Date, which interest payment shall be earned and due and payable in full on the  Amendment No. 9 Effective Date; and  (d) the Administrative Agent and the Lenders shall have received payment for all  reasonable and documented and invoiced out-of-pocket costs and expenses required to be paid or  reimbursed under Section 9.03 of the Credit Agreement on the Amendment No. 9 Effective Date,  for which invoices have been presented at least one Business Day prior to the Amendment No. 9  Effective Date.  Section 8. Release.  (a) In consideration of the agreements of the Lenders and the Administrative Agent contained  herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby  acknowledged, each Loan Party, on behalf of itself and its successors and assigns (each Loan Party and all  such other Persons being hereinafter referred to collectively as the “Releasing Parties” and individually as  a “Releasing Party”), hereby absolutely, unconditionally and irrevocably releases, remises and forever  discharges each Lender, the Administrative Agent and each of their respective successors and assigns, and  their respective present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors,  officers, attorneys, employees, agents, legal representatives and other representatives (the Lenders, the  Administrative Agent and all such other Persons being hereinafter referred to collectively as the  “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits,  damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities  whatsoever (individually, a “Claim” and collectively, “Claims”) of every kind and nature, known or  unknown, suspected or unsuspected, at law or in equity, which any of the Loan Parties or any of the  successors, assigns, or other legal representatives of any of the Loan Parties may now or hereafter own,  hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any  circumstances, action, cause or thing whatsoever which arose or occurred at any time on or prior to the date  of this Agreement, for or on account of, or in relation to, or in any way in connection with this Agreement,  the Credit Agreement, the Amended Credit Agreement, any of the Loan Documents or any of the  transactions hereunder or thereunder; provided that nothing contained herein shall release the Releasees  from any Claims that (i) may arise after the date hereof for or on account of, or in relation to, or in any way  in connection with this Agreement, the Amended Credit Agreement, any of the Loan Documents or  transactions contemplated hereunder or thereunder (including obligations of the Releasees to comply with  this Agreement, the Amended Credit Agreement, any of the Loan Documents, as modified hereby, after the  date hereof) or (ii) resulting from the bad faith or willful misconduct of such Releasees (each as determined  in a final, non-appealable judgment by a court of competent jurisdiction).  (b) Each Loan Party understands, acknowledges and agrees that the release set forth above  may be pleaded as a full and complete defense to any Claim and may be used as a basis for an injunction  against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of  the provisions of such release.  





 






5  (c) Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which  could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute  and unconditional nature of the release set forth above.  (d) Each of the Releasing Parties hereby absolutely, unconditionally and irrevocably,  covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any  regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and  discharged by any Releasing Party pursuant to this Section 8.  If any Releasing Party violates the foregoing  covenant, each Loan Party, for itself and its successors and assigns, and its present and former members,  shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees,  agents, legal representatives and other representatives, agrees to pay, in addition to such other damages as  any Releasee may sustain as a result of such violation, all attorneys’ fees and costs incurred by any Releasee  as a result of such violation.  Section 9. Final Agreement.  This Agreement, the Amended Credit Agreement and any other  written agreements, instruments, and documents entered into in connection herewith and therewith  (collectively, the “Borrower/Lender Documents”) set forth in full the terms of agreement among the  parties hereto and thereto with respect to the subject matter hereof and thereof and are intended as the full,  complete, and exclusive contracts governing the relationship between such parties with respect to the  subject matter hereof and thereof, superseding all other discussions, promises, representations, warranties,  agreements, and understandings between the parties with respect thereto.  Except as expressly provided  therein, no term of the Borrower/Lender Documents may be modified or amended, nor may any rights  thereunder be waived, except in a writing signed by the party against whom enforcement of the  modification, amendment, or waiver is sought.  Any waiver of any condition in, or breach of, any of the  foregoing in a particular instance shall not operate as a waiver of other or subsequent conditions or breaches  of the same or a different kind.  The Administrative Agent’s or any Lender’s exercise or failure to exercise  any rights or remedies under any of the foregoing in a particular instance shall not operate as a waiver of  its right to exercise the same or different rights and remedies in any other instances.  Any agreement by the  Lenders or the Administrative Agent concerning any forbearance, waiver or other accommodation  concerning any Default or Event of Default or the payment and performance of the Loan Document  Obligations must be set forth in writing and signed by a duly authorized signatory of each of the parties  required to be a signatory thereto by the Loan Documents.  There are no oral agreements among the parties  hereto.  Section 12. No Novation.  Nothing herein contained shall be construed as a substitution or  novation of the obligations outstanding under the Credit Agreement or instruments securing the same,  which shall remain in full force and effect, except to any extent modified hereby or by instruments executed  concurrently herewith.  Nothing implied in this Agreement or in any other document contemplated hereby  shall discharge or release the Lien or priority of any Security Document or any other security therefor or  otherwise be construed as a release or other discharge of any of the Loan Parties under any Loan Document  from any of its obligations and liabilities as a borrower, guarantor or pledgor under any of the Loan  Documents, except, in each case, to any extent modified hereby.  Section 13. Miscellaneous.  Sections 9.03, 9.06, 9.09 and 9.10 of the Credit Agreement are  incorporated herein by reference and apply mutatis mutandis.  On and after the effectiveness of this  Agreement, this Agreement shall for all purposes constitute a Loan Document.  [SIGNATURE PAGES FOLLOW]  





 






  [Signature Page to Amendment No. 9 to the Credit Agreement]  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their  respective authorized officers as of the day and year first above written.    BLIZZARD MIDCO, LLC,  as Holdings  By: /s/ Jason Schulz    Name:   Jason Schulz   Title: Chief Financial Officer    NORVAX, LLC,  as a Borrower  By: /s/ Jason Schulz    Name:   Jason Schulz   Title: Chief Financial Officer     





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  GOHEALTH, LLC,  as a Guarantor  By: /s/ Jason Schulz    Name:   Jason Schulz   Title: Chief Financial Officer      CONNECTED BENEFITS, LLC,  as a Guarantor  By: /s/ Jason Schulz    Name:   Jason Schulz   Title: Chief Financial Officer    CREATIX, INC.,  as a Guarantor  By: /s/ Jason Schulz    Name:   Jason Schulz   Title: Treasurer   





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  OWL ROCK CAPITAL CORPORATION,   as Administrative Agent   By: /s/ Jeff Walwyn    Name:  Jeff Walwyn   Title:    Authorized Signatory    





 






  [Signature Page to Amendment No. 9 to the Credit Agreement]  GOLUB CAPITAL PARTNERS CLO 16(M)- R2, L.P., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GOLUB CAPITAL PARTNERS CLO 17(M)- R, LTD., as a Lender    By: GC Advisors LLC, as agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GOLUB CAPITAL PARTNERS CLO 21(M)- R, LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GOLUB CAPITAL PARTNERS CLO 24(M)- R, LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  GOLUB CAPITAL PARTNERS CLO 25(M)- R, LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GOLUB CAPITAL PARTNERS CLO 28(M)- R, L.P., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GOLUB CAPITAL PARTNERS CLO 31(M)- R, LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GOLUB CAPITAL PARTNERS CLO 33(M)- R2, L.P., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  GOLUB CAPITAL PARTNERS CLO 34(M)- R, LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GOLUB CAPITAL PARTNERS CLO 36(M),  LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GOLUB CAPITAL PARTNERS CLO 38(M),  LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL PARTNERS CLO 42(M),  LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  GOLUB CAPITAL PARTNERS CLO 44(M),  LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL PARTNERS CLO 45(M),  LTD., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL PARTNERS CLO 46(M),  L.P., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL PARTNERS CLO 47(M),  L.P., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  GOLUB CAPITAL PARTNERS CLO 49(M)- R, as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL PARTNERS CLO 51(M),  L.P., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL PARTNERS CLO 54(M),  L.P., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL PARTNERS CLO 56(M),  as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  GOLUB CAPITAL PARTNERS CLO 57(M),  as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL PARTNERS CLO 59(M),  as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GC ADVISORS LLC AS AGENT FOR  PHILADELPHIA INDEMNITY  INSURANCE COMPANY, as a Lender      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GC ADVISORS LLC AS AGENT FOR  RELIANCE STANDARD LIFE  INSURANCE COMPANY, as a Lender      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      GC ADVISORS LLC AS AGENT FOR  SAFETY NATIONAL CASUALTY  CORPORATION, as a Lender      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  GC ADVISORS LLC AS AGENT FOR  TMD-DL HOLDINGS, LLC, as a Lender      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GC ADVISORS LLC AS AGENT FOR U.S.  SPECIALTY INSURANCE COMPANY, as a  Lender      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GC ADVISORS LLC AS AGENT FOR RGA  OPERATING COMPANY, as a Lender      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GCIC HOLDINGS LLC,   as a Lender  By: Golub Capital BDC, Inc., its sole member  By: GC Advisors LLC, its Manager      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GBDC 3 FUNDING LLC,   as a Lender  By: Golub Capital BDC 3, Inc., its sole member  By: GC Advisors LLC, its Manager      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  GOLUB CAPITAL FINANCE FUNDING IV  TRUST, as a Lender    By: GC Advisors LLC, its Manager      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GCP FINANCE 6 L.P., as a Lender    By: GC Advisors LLC, its agent      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director    GOLUB CAPITAL BDC 3 ABS 2022-1 LLC,  as a Lender    By: GC Advisors LLC, its Manager      By: /s/ Marc C. Robinson   Name:  Marc C. Robinson  Title:    Senior Managing Director      





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  OWL ROCK CAPITAL CORPORATION,  as a Lender  By: /s/ Jeff Walwyn    Name:  Jeff Walwyn   Title:    Authorized Signatory  OWL ROCK CAPITAL CORPORATION II,  as a Lender  By: /s/ Jeff Walwyn    Name:  Jeff Walwyn   Title:    Authorized Signatory  OWL ROCK CLO I, LTD., as a Lender  By:  Owl Rock Capital Advisors LLC, its  Collateral Agent  By: /s/ Jeff Walwyn    Name:  Jeff Walwyn   Title:    Authorized Signatory  OWL ROCK CLO II, LTD., as a Lender  By:  Owl Rock Capital Advisors LLC, its  Collateral Agent  By: /s/ Jeff Walwyn    Name:  Jeff Walwyn   Title:    Authorized Signatory  ORCC II FINANCING LLC, as a Lender  By: /s/ Jeff Walwyn    Name:  Jeff Walwyn   Title:    Authorized Signatory     





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  Benefit Street Partners Debt Fund IV LP   By: Benefit Street Partners Debt Fund IV GP LP, its  general partner   By: Benefit Street Partners Debt Fund IV Ultimate  GP Ltd., its general partner   By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners Debt Fund IV Master (Non- US) L.P.  By: Benefit Street Partners Debt Fund IV (Non-US)  GP LP, its general partner  By: Benefit Street Partners Debt Fund IV Ultimate  GP Ltd., its general partner   By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners Debt Fund IV 2019 Leverage  SPV L.P.  By: Benefit Street Partners L.L.C., its portfolio  manager  By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners Debt Fund IV 2019 Leverage  (Non-US) SPV L.P.   By: Benefit Street Partners L.L.C., its portfolio  manager  By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  Landmark Wall SMA L.P.   By: Benefit Street Partners SMA-LK GP L.P.,  its general partner  By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners SMA-T L.P.   By: Benefit Street Partners SMA-T GP L.P., its  general partner   By: Benefit Street Partners SMA-T Ultimate GP  LLC, its general partner   By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners Capital Opportunity Fund  II LP By: Benefit Street Partners Capital  Opportunity Fund GP LP, its general partner   By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners SMA LM LP   By: Benefit Street Partners SMA LM GP L.P.,  its general partner   By: Benefit Street Partners SMA LM Ultimate  GP LLC, its general partner   By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  Benefit Street Partners SMA-C II L.P.   By:  Benefit Street Partners L.L.C. its investment advisor  By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners SMA-C II SPV L.P.   By: Benefit Street Partners L.L.C., its portfolio manager  By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners SMA-K L.P.   By: Benefit Street Partners SMA-K GP L.P., its general  partner   By: Benefit Street Partners SMA-K Ultimate GP LLC, its  general partner   By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory  Benefit Street Partners Senior Secured Opportunities  Master Fund (Non-US) L.P.   By: BSP Senior Secured Opportunities Fund (Non-US)  GP LP, its general partner   By: Benefit Street Partners Senior Secured Opportunities  Fund (Non-US) Ultimate GP LLC, its general partner   By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory    





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  Benefit Street Partners Senior Secured Opportunities  (U) Master Fund (Non-US) L.P.  By: BSP Senior Secured Opportunities Fund (Non- US) GP LP, its general partner  By: Benefit Street Partners Senior Secured  Opportunities Fund (Non-US) Ultimate GP LLC, its  general partner  By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory      Benefit Street Partners Senior Secured Opportunities  Fund L.P.   By: BSP Senior Secured Opportunities Fund GP LP,  its general partner  By: /s/ Michael Frick     Name:  Michael Frick   Title:    Authorized Signatory               





 






[Signature Page to Amendment No. 9 to the Credit Agreement]   BARCLAYS BANK PLC, as a Lender  By: /s/ Edward Pan    Name:  Edward Pan   Title:    Vice President     





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  MORGAN STANLEY SENIOR FUNDING,  INC., as a Lender  By: /s/ Jack Kuhns    Name:  Jack Kuhns   Title:    Vice President   





 






[Signature Page to Amendment No. 9 to the Credit Agreement]  ROYAL BANK OF CANADA, as a Lender  By: /s/ Amy G. Josephson    Name:  Amy G. Josephson   Title:    Authorized Signatory     





 






  Exhibit A    (See attached.)      





 






    Execution Version  Exhibit A to Amendment No. 89                   CREDIT AGREEMENT  dated as of  September 13, 2019  as amended by Amendment No. 1, dated as of March 20, 2020,  Incremental Facility Agreement and Technical Amendment No. 2, dated as of May 7, 2020,  Incremental Facility Agreement No. 3, dated as of June 11, 2020,  Amendment No. 4 to Credit Agreement and Incremental Facility Agreement, dated as of May 7, 2021,  Amendment No. 5 to Credit Agreement and Incremental Facility Agreement, dated as of June 11, 2021  Amendment No. 6 to Credit Agreement and Incremental Facility Agreement, dated as of November 10,  2021,  Amendment No. 7 to Credit Agreement, dated as of March 14, 2022, and  Amendment No. 8 to Credit Agreement, dated as of August 12, 2022 and  Amendment No. 9 to the Credit Agreement, dated as of November 9, 2022  among  BLIZZARD MIDCO, LLC,  as Holdings,  BLIZZARD MERGER SUB, LLC (and after giving effect to the Merger, NORVAX, LLC),  as the Borrower,  The LENDERS and ISSUING BANKS Party Hereto,  and  OWL ROCK CAPITAL CORPORATION,  as Administrative Agent, Collateral Agent and Swingline Lender                 





 






     OWL ROCK CAPITAL ADVISORS LLC, MIDCAP FINANCIAL TRUST AND BENEFIT STREET  PARTNERS L.L.C.,  as Joint Lead Arrangers and Joint Bookrunners                 





 






      TABLE OF CONTENTS  Page  ARTICLE I DEFINITIONS ......................................................................................................................... 2  SECTION 1.01 Defined Terms ................................................................................................. 2  SECTION 1.02 Classification of Loans and Borrowings ....................................................... 82  SECTION 1.03 Terms Generally ............................................................................................ 83  SECTION 1.04 Accounting Terms; GAAP ............................................................................ 83  SECTION 1.05 Currency Translation; Rates .......................................................................... 84  SECTION 1.06 Timing of Payment of Performance .............................................................. 85  SECTION 1.07 Cashless Rollovers ........................................................................................ 85  SECTION 1.08 Certain Calculations and Tests ...................................................................... 85  SECTION 1.09 Rounding ....................................................................................................... 86  SECTION 1.10 [Reserved] ..................................................................................................... 86  SECTION 1.11 Pro Forma and Other Calculations ................................................................ 86  ARTICLE II THE CREDITS ...................................................................................................................... 88  SECTION 2.01 Commitments ................................................................................................ 88  SECTION 2.02 Loans and Borrowings .................................................................................. 89  SECTION 2.03 Requests for Borrowings ............................................................................... 90  SECTION 2.04 Swingline Loans ............................................................................................ 91  SECTION 2.05 Letters of Credit ............................................................................................ 92  SECTION 2.06 Funding of Borrowings ................................................................................. 98  SECTION 2.07 Interest Elections ........................................................................................... 99  SECTION 2.08 Termination and Reduction of Commitments ............................................. 100  SECTION 2.09 Repayment of Loans; Evidence of Debt ...................................................... 101  SECTION 2.10 Amortization of Term Loans ....................................................................... 103  SECTION 2.11 Prepayment of Loans ................................................................................... 103  SECTION 2.12 Fees ............................................................................................................. 110  SECTION 2.13 Interest ......................................................................................................... 112  SECTION 2.14 Alternate Rate of Interest ............................................................................ 112  SECTION 2.15 Increased Costs ............................................................................................ 114  SECTION 2.16 Break Funding Payments ............................................................................ 115  SECTION 2.17 Taxes ........................................................................................................... 115  SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs .............. 118119  SECTION 2.19 Mitigation Obligations; Replacement of Lenders ....................................... 120  SECTION 2.20 Incremental Loans and Commitments ......................................................... 121  SECTION 2.21 [Reserved] ................................................................................................... 125  SECTION 2.22 Defaulting Lenders ...................................................................................... 125  SECTION 2.23 Illegality ...................................................................................................... 126  SECTION 2.24 Loan Modification Offers ............................................................................ 127  ARTICLE III REPRESENTATIONS AND WARRANTIES .................................................................. 131  SECTION 3.01 Organization; Powers .................................................................................. 131  SECTION 3.02 Authorization; Enforceability ...................................................................... 131  SECTION 3.03 Governmental Approvals; No Conflicts ...................................................... 131  SECTION 3.04 Financial Condition; No Material Adverse Effect....................................... 132  SECTION 3.05 Properties ..................................................................................................... 132  SECTION 3.06 Litigation, Environmental and Labor Matters ............................................. 132  SECTION 3.07 Compliance with Laws ................................................................................ 133  





 






ii  SECTION 3.08 Investment Company Status ........................................................................ 133  SECTION 3.09 Taxes ........................................................................................................... 133  SECTION 3.10 ERISA; Foreign Pension Plans.................................................................... 133  SECTION 3.11 Disclosure .................................................................................................... 134  SECTION 3.12 Subsidiaries ................................................................................................. 134  SECTION 3.13 Intellectual Property; Licenses, Etc. ............................................................ 134  SECTION 3.14 Solvency ...................................................................................................... 134  SECTION 3.15 Federal Reserve Regulations ....................................................................... 135  SECTION 3.16 Security Interest in Collateral ...................................................................... 135  SECTION 3.17 USA Patriot Act, OFAC and FCPA ............................................................ 135  ARTICLE IV CONDITIONS ................................................................................................................... 135  SECTION 4.01 Effective Date .............................................................................................. 136  SECTION 4.02 Each Credit Event ........................................................................................ 138  ARTICLE V AFFIRMATIVE COVENANTS ......................................................................................... 138  SECTION 5.01 Financial Statements and Other Information ............................................... 139  SECTION 5.02 Notices of Material Events .......................................................................... 142  SECTION 5.03 Information Regarding Collateral ............................................................... 142  SECTION 5.04 Existence; Conduct of Business .................................................................. 142  SECTION 5.05 Payment of Taxes, Etc. .......................................................................... 142143  SECTION 5.06 Maintenance of Properties ..................................................................... 142143  SECTION 5.07 Insurance. .................................................................................................... 143  SECTION 5.08 Books and Records; Inspection and Audit Rights; Lender  call ............................................................................................................... 143  SECTION 5.09 Compliance with Laws ................................................................................ 144  SECTION 5.10 Use of Proceeds and Letters of Credit ......................................................... 144  SECTION 5.11 Additional Subsidiaries ............................................................................... 145  SECTION 5.12 Further Assurances ...................................................................................... 145  SECTION 5.13 [Reserved]. .................................................................................................. 146  SECTION 5.14 Certain Post-Closing Obligations ................................................................ 146  SECTION 5.15 Designation of Subsidiaries ......................................................................... 146  ARTICLE VI NEGATIVE COVENANTS ........................................................................................ 146147  SECTION 6.01 Indebtedness; Certain Equity Securities ...................................................... 147  SECTION 6.02 Liens ............................................................................................................ 153  SECTION 6.03 Fundamental Changes ................................................................................. 158  SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions .............. 159160  SECTION 6.05 Asset Sales................................................................................................... 164  SECTION 6.06 Holdings Covenant ................................................................................ 167168  SECTION 6.07 Negative Pledge; Subsidiary Distributions .................................................. 169  SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness ............................ 171  SECTION 6.09 Transactions with Affiliates ........................................................................ 177  SECTION 6.10 Change in Nature of Business ............................................................... 178179  SECTION 6.11 Accounting Changes ................................................................................... 179  SECTION 6.12 Changes to Organizational Documents ....................................................... 179  SECTION 6.13 Financial Maintenance Covenant ................................................................ 179  ARTICLE VII EVENTS OF DEFAULT ............................................................................................ 181182  SECTION 7.01 Events of Default ................................................................................... 181182  SECTION 7.02 Right to Cure ............................................................................................... 184  





 






iii  SECTION 7.03 Application of Proceeds ........................................................................ 185186  ARTICLE VIII THE ADMINISTRATIVE AGENT ......................................................................... 185186  ARTICLE IX MISCELLANEOUS .................................................................................................... 190191  SECTION 9.01 Notices ................................................................................................... 190191  SECTION 9.02 Waivers; Amendments .......................................................................... 191192  SECTION 9.03 Expenses; Indemnity; Damage Waiver ....................................................... 196  SECTION 9.04 Successors and Assigns ......................................................................... 198199  SECTION 9.05 Survival ....................................................................................................... 204  SECTION 9.06 Counterparts; Integration; Effectiveness ............................................... 204205  SECTION 9.07 Severability.................................................................................................. 205  SECTION 9.08 Right of Setoff ............................................................................................. 205  SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process ............... 205206  SECTION 9.10 WAIVER OF JURY TRIAL ....................................................................... 206  SECTION 9.11 Headings ................................................................................................ 206207  SECTION 9.12 Confidentiality ....................................................................................... 206207  SECTION 9.13 USA Patriot Act .......................................................................................... 208  SECTION 9.14 Judgment Currency ..................................................................................... 208  SECTION 9.15 Release of Liens and Guarantees ........................................................... 208209  SECTION 9.16 No Fiduciary Relationship .......................................................................... 209  SECTION 9.17 Permitted Intercreditor Agreements ............................................................ 209  SECTION 9.18 Acknowledgement and Consent to Bail-In of EEA Financial  Institutions ................................................................................................... 210  SECTION 9.19 Electronic Execution of Assignments and Certain Other  Documents ................................................................................................... 211  SECTION 9.20 Other Agents and Arrangers ........................................................................ 211  SECTION 9.21 Certain ERISA Matters ......................................................................... 211212  SECTION 9.22 Acknowledgment Regarding Any Supported QFCs ............................. 212213  SECTION 9.23 Consummation of Merger ........................................................................... 213      SCHEDULES:        Schedule 1.01(a) — Excluded Subsidiaries  Schedule 2.01 — Commitments  Schedule 2.05 — LC Commitments and Applicable LC Fronting Schedule  Schedule 3.05 — Effective Date Material Real Property  Schedule 3.06 — Environmental Matters  Schedule 3.12 — Subsidiaries  Schedule 5.14 — Certain Post-Closing Obligations  Schedule 6.01 — Existing Indebtedness  Schedule 6.02 — Existing Liens  Schedule 6.04(f) — Existing Investments  Schedule 6.07 — Existing Restrictions  Schedule 6.09    —    Existing Affiliate Transactions        EXHIBITS:        Exhibit A — Form of Assignment and Assumption   





 






iv  Exhibit B — Form of Borrowing Request  Exhibit C — Form of Collateral Agreement  Exhibit D — Form of Equal Priority Intercreditor Agreement  Exhibit E — Form of Junior Priority Intercreditor Agreement  Exhibit F — Form of Guarantee Agreement  Exhibit G — Form of Interest Election Request  Exhibit H — Form of Notice of Prepayment  Exhibit I-1 — Form of U.S. Tax Compliance Certificate (For Non-U.S. Lenders  That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Exhibit I-2 — Form of U.S. Tax Compliance Certificate (For Non-U.S. Lenders  That Are Partnerships For U.S. Federal Income Tax Purposes)  Exhibit I-3 — Form of U.S. Tax Compliance Certificate (For Non-U.S.  Participants That Are Not Partnerships For U.S. Federal Income  Tax Purposes)  Exhibit I-4 — Form of U.S. Tax Compliance Certificate (For Non-U.S.  Participants That Are Partnerships For U.S. Federal Income Tax  Purposes)  Exhibit J — Form of Closing Certificate  Exhibit K — Form of Intercompany Note  Exhibit L — Form of Promissory Note  





 






  1   CREDIT AGREEMENT, dated as of September 13, 2019 (as amended by Amendment No. 1, dated  as of March 20, 2020, Incremental Facility Agreement and Technical Amendment No. 2, dated as of May  7, 2020, Incremental Facility Agreement No. 3, dated as of June 11, 2020, Amendment No. 4 to Credit  Agreement and Incremental Facility Agreement, dated as of May 7, 2021, Amendment No. 5 to Credit  Agreement and Incremental Facility Agreement, dated as of June 11, 2021, Amendment No. 6 to Credit  Agreement and Incremental Facility Agreement, dated as of November 10, 2021, Amendment No. 7 to  Credit Agreement, dated as of March 14, 2022, and asAmendment No. 8 to the Credit Agreement, dated  as of August 12, 2022, and as further amended, this “Agreement”), among BLIZZARD MIDCO, LLC, a  Delaware limited liability company (“Initial Holdings”), BLIZZARD MERGER SUB, LLC, a Delaware  limited liability company (“Merger Sub”), and after giving effect to the Merger, NORVAX, LLC, a  Delaware limited liability company (“Norvax”), the LENDERS and ISSUING BANKS party hereto and  OWL ROCK CAPITAL CORPORATION, as Administrative Agent and as Collateral Agent.  RECITALS  WHEREAS, pursuant to the Merger Agreement, (a) Blizzard Parent, LLC, a Delaware limited  liability company (“Parent”)  will acquire (the “Acquisition”), directly or indirectly, all of the limited  liability company interests of Norvax, LLC, a Delaware limited liability company (the “Target”) through  certain investor exchange agreements and the merger of Merger Sub with and into the Target (the  “Merger”), with the Target being the surviving entity of such merger (the “Merger”) and the Target will  become a wholly-owned direct or indirect subsidiary of Initial Holdings (the direct Subsidiary of Parent)  and (b) except with respect to certain equity interests of the Target held by, without limitation,  equityholders, management and/or employees of the Target and its subsidiaries which will be rolled over  into Equity Interests in Parent or a Parent Entity of Parent (in such capacity, the “Rollover Investors”), the  equity holders of the Target will receive cash in exchange for their Equity Interests in the Target  (collectively, the “Merger Consideration”).    WHEREAS, the Investors will, directly or indirectly, make the Equity Contribution;  WHEREAS, in connection with the foregoing, Holdings and the Borrower have requested that,  immediately upon the satisfaction in full of the applicable conditions precedent set forth in Section 4.01  below, the Lenders and Issuing Banks extend credit to the Borrower in the form of (a) $300,000,000 in  aggregate principal amount of Initial Term Loans to be borrowed on the Effective Date and (b) a revolving  credit facility in an initial aggregate principal amount of $30,000,000 of Revolving Commitments;  WHEREAS, the proceeds of the Initial Term Loans and Revolving Loans (to the extent permitted  in accordance with Section 5.10), in each case, to be made on the Effective Date, together with (a) a portion  of the cash on hand at the Target and its Subsidiaries and (b) the proceeds of the Equity Contribution, will  be used to pay for the Effective Date Refinancing and to finance a portion of the Transactions (including  working capital and/or purchase price adjustments and the payment of the Merger Consideration and the  Transaction Costs);  WHEREAS, the Lenders have indicated their willingness to extend such credit and the Issuing  Banks have indicated their willingness to issue Letters of Credit, in each case on the terms and subject to  the conditions set forth below;  WHEREAS, in connection with the foregoing and as an inducement for the Lenders and the Issuing  Banks to extend the credit contemplated hereunder, the Borrower has agreed to secure all of its Secured  Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority lien  (such priority subject to Liens permitted hereunder) on substantially all of its assets (except as otherwise  





 






2  set forth in the Loan Documents), including a pledge of all of the Equity Interests of each of its Subsidiaries  (other than any Equity Interests constituting Excluded Assets); and  WHEREAS, in connection with the foregoing and as an inducement for the Lenders and the Issuing  Banks to extend the credit contemplated hereunder, each of Holdings and each other Guarantor has agreed  to guarantee all of its Secured Obligations and to secure its guarantees by granting to the Collateral Agent,  for the benefit of the Secured Parties, a first priority lien (such priority subject to Liens permitted hereunder)  on substantially all of its assets (except as otherwise set forth in the Loan Documents), including a pledge  of all of the Equity Interests of each of their respective Subsidiaries (other than any Equity Interests  constituting Excluded Assets).  NOW THEREFORE, the parties hereto agree as follows:  ARTICLE I    DEFINITIONS  SECTION 1.01 Defined Terms.  As used in this Agreement, the following terms have the  meanings specified below:  “2020 Incremental Closing Date” has the meaning assigned to such term in Amendment No. 1.  “2020 Incremental Revolving Commitments” means, in respect of each 2020 Incremental  Revolving Lender, the amount set forth opposite such Lender’s name on Schedule 1 to Incremental Facility  Agreement No. 2.  The aggregate amount of 2020 Incremental Revolving Commitments as of the  Incremental Facility Agreement No. 2 Effective Date is $20,000,000.  “2020 Incremental Revolving Lenders” has the meaning assigned to such term in the Incremental  Facility Agreement No. 2.  “2020 Incremental Term Lenders” has the meaning assigned to such term in the Amendment No.  1.  “2020 Incremental Term Loan Commitments” means with respect to each 2020 Incremental Term  Lender, the amount set forth opposite such Lender’s name on Schedule 1 to the Amendment No. 1.  The  aggregate amount of 2020 Incremental Term Loan Commitments as of the Amendment No. 1 Effective  Date is $117,000,000.  “2020 Incremental Term Loan Facility” means the facility under which the 2020 Incremental Term  Loans are made available pursuant to the Amendment No. 1.  “2020 Incremental Term Loans” has the meaning assigned to such term in Amendment No. 1.  “2020 Incremental Term Loan Maturity Date” shall mean the Initial Term Loan Maturity Date.  “2021 Incremental Term Lenders” has the meaning assigned to such term in Amendment No. 5.   “2021 Incremental Term Loan Commitments” has the meaning assigned to such term in  Amendment No. 5.  





 






3  “2021 Incremental Term Loan Facility” means the facility under which the 2021 Incremental Term  Loans are made available pursuant to Amendment No. 5.  “2021 Incremental Term Loans” has the meaning assigned to such term in Amendment No. 5.  “2021 Incremental Term Loan Maturity Date” shall mean the Initial Term Loan Maturity Date.  “2021-2 Incremental Term Lenders” has the meaning assigned to such term in Amendment No. 6.  “2021-2 Incremental Term Loan Closing Date” means the “Incremental Funding Date” as defined  in Amendment No. 6, which, for the avoidance of doubt, is November 10, 2021.  “2021-2 Incremental Term Loan Commitments” has the meaning assigned to such term in  Amendment No. 6.  The aggregate amount of 2021-2 Incremental Term Loan Commitments as of the  Amendment No. 6 Effective Date is $100,000,000.  “2021-2 Incremental Term Loan Facility” means the facility under which the 2021-2 Incremental  Term Loans are made available pursuant to Amendment No. 6.  “2021-2 Incremental Term Loans” has the meaning assigned to such term in Amendment No. 6.  “2021-2 Incremental Term Loan Maturity Date” shall mean the Initial Term Loan Maturity Date.  “ABR” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate  Base Rate.  “Account Control Agreement” has the meaning assigned to such term in clause (e) of the definition  of “Collateral and Guarantee Requirement.”  “Accounting Changes” has the meaning assigned to such term in Section 1.04(c).   “Acquired EBITDA” means, with respect to any Pro Forma Entity for any period, the amount for  such period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Borrower  and the Restricted Subsidiaries in the definition of “Consolidated EBITDA” (and in the component financial  definitions used therein) were references to such Pro Forma Entity and its Subsidiaries which will become  Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.  “Acquired Entity or Business” has the meaning assigned to such term in the definition of  “Consolidated EBITDA.”  “Acquisition” has the meaning assigned to such term in the recitals to this Agreement.  “Acquisition Consideration” means, in connection with any Acquisition Transaction, the aggregate  amount (as valued at the Fair Market Value of such Acquisition Transaction at the time such Acquisition  Transaction is made) of, without duplication:  (a) the purchase consideration paid or payable for such  Acquisition Transaction, whether payable at or prior to the consummation of such Acquisition Transaction  or deferred for payment at any future time, whether or not any such future payment is subject to the  occurrence of any contingency, and including any and all payments representing the purchase price and any  assumptions of Indebtedness and/or Guarantees, “earn-outs” and other agreements 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  





 






4  the revenues, income, cash flow or profits (or the like) of any Person or business and (b) the aggregate  amount of Indebtedness assumed or acquired in connection with such Acquisition Transaction; provided in  each case, that any such future payment that is subject to a contingency shall be considered Acquisition  Consideration only to the extent of the reserve, if any, required under GAAP (as determined at the time of  the consummation of such Acquisition Transaction) to be established in respect thereof by Holdings, the  Borrower or any Restricted Subsidiary.  “Acquisition Debt” has the meaning assigned to such term in Section 6.01(a)(xxvi).  “Acquisition Transaction” means the purchase or other acquisition, by merger, consolidation or  otherwise, by the Borrower or any Restricted Subsidiary of all Equity Interests in, or all or substantially all  the assets of (or all or substantially all the assets constituting a business unit, division, product line or line  of business of), any Person or of a majority of the outstanding Equity Interests of any Person (including any  Investment which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity  ownership in any Joint Venture to an amount in excess of the majority of the outstanding Equity Interests  of such Joint Venture).  “Additional Lender” means, at any time, any bank, other financial institution or institutional lender  or investor (including any such bank, financial institution or institutional lender or investor that is a Lender  at such time) that agrees to provide any portion of any (a) Incremental Facility pursuant to an Incremental  Facility Amendment in accordance with Section 2.20 or (b) Credit Agreement Refinancing Indebtedness;  provided that each Additional Lender shall be subject to the approval of (i) the Administrative Agent, each  Issuing Bank and the Swingline Lender (such approval in each case not to be unreasonably withheld or  delayed) and (ii) the Borrower, in each of the foregoing clauses (i) and (ii), to the extent such approval  would be required pursuant to Section 9.04 if an assignment of the applicable Loans or Commitments were  being made to such Additional Lender.   “Adjusted LIBO Rate” means, for any Interest Period, with respect to an Interest Period for a  Eurocurrency Loan, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%)  equal to (a) the LIBO Rate for Dollars for such Interest Period multiplied by (b) the Statutory Reserve Rate.  “Administrative Agent” means Owl Rock Capital Corporation (or an affiliate, designee or sub- agent designated by it), in its capacity as administrative agent hereunder and under the other Loan  Documents, and its successors in such capacity as provided in Article VIII.  “Administrative Questionnaire” means an administrative questionnaire in a form supplied by the  Administrative Agent.  “Affiliate” means, with respect to a specified Person, another Person that directly or indirectly  Controls or is Controlled by or is under common Control with the Person specified.   “After Year End Payment” has the meaning assigned to such term in Section 2.11(d).  “Agent” means the Administrative Agent and the Collateral Agent and any successors and  permitted assigns in such capacity, and “Agents” means two or more of them.  For the avoidance of doubt,  the use of the defined term “Agent” or the term “agent” with reference to any Agent herein and in the other  Loan Documents is not intended to connote any fiduciary or other implied (or express) obligations arising  under agency doctrine of any applicable law.   “Agreement” has the meaning assigned to such term in the preamble hereto.  





 






5  “Agreement Currency” has the meaning assigned to such term in Section 9.14(b).  “AHYDO Catch-Up Payment” means any payment with respect to any obligations of Holdings,  the Borrower or any Restricted Subsidiary to avoid the application of Section 163(e)(5) of the Code thereto.  “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime  Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% per  annum and (c) the Adjusted LIBO Rate on such day (or if such day is not a Business Day, the immediately  preceding Business Day) for a deposit in Dollars with a maturity of one month plus 1% per annum.  For  purposes of clause (c) above, the Adjusted LIBO Rate on any day shall be based on the rate per annum  appearing on the applicable Bloomberg screen page displaying ICE Benchmark Administration interest  settlement rates (or on any successor or substitute screen provided by Reuters, or any successor to or  substitute for such service, providing rate quotations comparable to those currently provided on such screen,  as determined by the Administrative Agent from time to time for purposes of providing quotations of  interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m.,  London time, on such day for deposits in Dollars with a maturity of one month.  Any change in the Alternate  Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate  shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds  Effective Rate or the Adjusted LIBO Rate, respectively.  Notwithstanding the foregoing and solely with  respect to Initial Term Loans, the 2020 Incremental Term Loans, the 2021 Incremental Term Loans and the  2021-2 Incremental Term Loans, the Alternate Base Rate will be deemed to be 2.00% per annum if the  Alternate Base Rate calculated pursuant to the foregoing provisions would otherwise be less than 2.00%  per annum.  “Amendment No. 1” means that certain Amendment No. 1 to Credit Agreement and Incremental  Facility Agreement, dated as of March 20, 2020, among Holdings, the Borrower, the 2020 Incremental  Term Lenders party thereto, the Administrative Agent, the Lenders party thereto constituting the Required  Lenders and the other parties party thereto.   “Amendment No. 1 Effective Date” has the meaning assigned to such term in Amendment No. 1.  “Amendment No. 5” means that certain Amendment No. 5 to Credit Agreement and Incremental  Facility Agreement, dated as of June 11, 2021, among the Borrower, each Guarantor, the Revolving Lenders  party thereto, the Amendment No. 5 Term Loan Lenders party thereto, the Administrative Agent, and the  other parties party thereto.   “Amendment No. 5 Effective Date” has the meaning assigned to such term in Amendment No. 5.  “Amendment No. 6” means that certain Amendment No. 6 to Credit Agreement and Incremental  Facility Agreement, dated as of November 10, 2021, among Holdings, the Borrower, the 2021-2  Incremental Term Lenders party thereto, the Administrative Agent, the Lenders party thereto constituting  the Required Lenders and the other parties party thereto.   “Amendment No. 6 Effective Date” has the meaning assigned to such term in Amendment No. 6,  which, for the avoidance of doubt, is November 10, 2021.  “Amendment No. 7” means that certain Amendment No. 7 to the Credit Agreement, dated as of  March 14, 2022, among Holdings, the Borrower, the other Guarantors, the Lenders party thereto  constituting the Required Lenders and the Administrative Agent.  





 






6  “Amendment No. 7 Fee Letter” means that certain Fee Letter, dated as of March 14, 2022, by and  among the Borrower and Golub Capital LLC.  “Amendment No. 7 Effective Date” has the meaning assigned to such term in Amendment No. 7,  which, for the avoidance of doubt, is March 14, 2022.  “Amendment No. 8” means that certain Amendment No. 8 to the Credit Agreement, dated as of  August 12, 2022, among Holdings, the Borrower, the other Guarantors, the Lenders party thereto  constituting the Required Lenders and the Administrative Agent.  “Amendment No. 8 Effective Date” has the meaning assigned to such term in Amendment No. 8,  which, for the avoidance of doubt, is August 12, 2022.   “Applicable Account” means, with respect to any payment to be made to the Administrative Agent  hereunder, the account specified by the Administrative Agent from time to time for the purpose of receiving  payments of such type.  “Applicable Creditor” has the meaning assigned to such term in Section 9.14(b).  “Applicable LC Fronting Sublimit” means (a) with respect to each Issuing Bank on the Effective  Date, the amount set forth opposite such Issuing Bank’s name on Schedule 2.05 and (b) with respect to any  other Person that becomes an Issuing Bank pursuant to Section 2.05(k) or 9.04(i), such amount as agreed  to in writing by the Borrower and such Person at the time such Person becomes an Issuing Bank, as each  of the foregoing amounts may be decreased or increased from time to time with the written consent of the  Borrower and the Issuing Banks so long as the aggregate Applicable LC Fronting Sublimit of all Issuing  Banks does not exceed the Letter of Credit Sublimit (provided that any increase in the Applicable LC  Fronting Sublimit with respect to any Issuing Bank shall require the consent of only the Borrower and such  Issuing Bank).  “Applicable Percentage” means, at any time with respect to any Revolving Lender, the percentage  of the aggregate Revolving Commitments (carried out to the ninth decimal place) represented by such  Lender’s Revolving Commitment at such time (or, if the Revolving Commitments have terminated or  expired, such Lender’s share of the aggregate Revolving Exposures of all Revolving Lenders at that time).   If the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined  based upon the Revolving Commitments most recently in effect, giving effect to any assignments pursuant  to this Agreement and to any Lender’s status as a Defaulting Lender at the time of determination.  “Applicable Premium” means with respect to any 2020 Incremental Term Loan on any Prepayment  Date, the greater of:  (1) 2.00%; and  (2) the fraction, expressed as a percentage, consisting of (A) (a) (i) the sum of the present  values at such Prepayment Date of (I) the price at which such Loan could be voluntarily prepaid on the date  that is two years after the 2020 Incremental Closing Date in accordance with Section 2.11(a) (including any  premium required pursuant to Section 2.11(a)), and (II) each scheduled payment of interest to be made on  such Loan on or after such Prepayment Date through (and including) the date that is two years after the  2020 Incremental Closing Date (but, in the case of the first such scheduled payment of interest, excluding  any amount of interest accrued prior to the Prepayment Date), in each case, discounted to the Prepayment  Date on a quarterly basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury  Rate as of such Prepayment Date plus 50 basis points, minus (ii) accrued but unpaid interest to, but  





 






7  excluding, the Prepayment Date over (b) the principal amount of such Loan, divided by (B) the principal  amount of such Loan.  Calculation of the Applicable Premium will be made by the Borrower or on behalf of the Borrower  by such Person as the Borrower shall designate (and the amount of the Applicable Premium shall be  provided by the Borrower to the Administrative Agent promptly following the calculation thereof);  provided that such calculation or the correctness thereof shall not be a duty or obligation of the  Administrative Agent.  “Applicable Rate” means, for any day,   (a) with respect to any Initial Term Loan (i) prior to the Amendment No. 8 Effective Date,  (x) that is an ABR Loan, 5.50% per annum or (iiy) that is a Eurocurrency Loan, 6.50% per annum, and (ii)  from and after the Amendment No. 8 Effective Date, (x) that is an ABR Loan, 6.50% per annum or  (y) that is a Eurocurrency Loan, 7.50% per annum,  (b) with respect to any 2020 Incremental Term Loan (i) prior to the Amendment No. 8  Effective Date, (x) that is an ABR Loan, 5.50% per annum or (iiy) that is a Eurocurrency Loan, 6.50% per  annum, and (ii) from and after the Amendment No. 8 Effective Date, (x) that is an ABR Loan, 6.50%  per annum or (y) that is a Eurocurrency Loan, 7.50% per annum,  (c) with respect to any 2021 Incremental Term Loan (i) prior to the 2021-2 Incremental Term  Loan Closing Date, (x) that is an ABR Loan, 3.00% per annum or (y) that is a Eurocurrency Loan, 4.00%  per annum, (ii) from and after the 2021-2 Incremental Term Loan Closing Date and prior to the Amendment  No. 7 Effective Date, (x) that is an ABR Loan, 4.00% per annum or (y) that is a Eurocurrency Loan, 5.00%  per annum, (iii) from and after the Amendment No. 7 Effective Date and prior to the Amendment No. 8  Effective Date, (x) that is an ABR Loan, 5.50% per annum or (y) that is a Eurocurrency Loan, 6.50% per  annum, and (iv) from and after the Amendment No. 8 Effective Date, (x) that is an ABR Loan, 6.50% per  annum or (y) that is a Eurocurrency Loan, 7.50% per annum,  (d) with respect to any 2021-2 Incremental Term Loan (i) prior to the Amendment No. 7  Effective Date, (x) that is an ABR Loan, 4.00% per annum or (ii) that is a Eurocurrency Loan, 5.00% per  annum, (ii) from and after the Amendment No. 7 Effective Date and prior to the Amendment No. 8 Effective  Date, (x) that is an ABR Loan, 5.50% per annum or (y) that is a Eurocurrency Loan, 6.50% per annum, and  (iii) from and after the Amendment No. 8 Effective Date, (x) that is an ABR Loan, 6.50% per annum or (y)  that is a Eurocurrency Loan, 7.50% per annum,  (e) with respect to any Revolving Loan prior to the Amendment No. 5 Effective Date (i) that  is an ABR Loan, 5.50% per annum or (ii) that is a Eurocurrency Loan, 6.50% per annum,   (f) with respect to any Class A Revolving Loan on and after the Amendment No. 5 Effective  Date (i) that is an ABR Loan, 5.50% per annum or (ii) that is a Eurocurrency Loan, 6.50% per annum, and   (g) with respect to any Class B Revolving Loan on and after the Amendment No. 5 Effective  Date (i) that is an ABR Loan, 3.00% per annum or (ii) that is a Eurocurrency Loan, 4.00% per annum.   “Approved Bank” has the meaning assigned to such term in the definition of “Cash Equivalents.”  “Approved Foreign Bank” has the meaning assigned to such term in the definition of “Cash  Equivalents.”  





 






8  “Approved Fund” means, with respect to any Lender, any Person (other than a natural person) that  is engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and/or similar  extensions of credit in the ordinary course of its activities and is administered, advised or managed by (a)  such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers,  advises or manages such Lender.  “ASC 606” means the Financial Accounting Standards Board Accounting Standards Certification  Topic No. 606, as amended.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender and  an Eligible Assignee (with the consent of any Person whose consent is required by Section 9.04), or as  otherwise required to be entered into under the terms of this Agreement, substantially in the form of  Exhibit A or any other form reasonably approved by the Administrative Agent.  “Audited Financial Statements” means the audited consolidated balance sheet of the Target and its  consolidated subsidiaries as of December 31, 2017 and December 31, 2018 and the related audited  consolidated statements of operations and consolidated statements of comprehensive income, consolidated  statements of changes in Redeemable Class B Units and members’ equity and consolidated audited  statements of cash flows for the fiscal years ended December 31, 2017 and December 31, 2018.  “Available Amount” means, at any date of determination, a cumulative amount equal to (without  duplication):  (a) an amount (which shall not be less than zero) equal to the Available Excess Cash Flow  Amount as of such date, plus  (b)  (i) the Net Proceeds of sales of Investments and (ii) Returns, profits, distributions and  similar amounts on Investments (not to exceed the original amount of such Investments), in the case of each  of clause (i) and (ii), to the extent (x) received by the Borrower and the Restricted Subsidiaries after the  Effective Date and on or prior to such date, (y) in the form of cash or Cash Equivalents and (z) such  Investment was made using the Available Amount, plus  (c) Investments of the Borrower or any Restricted Subsidiary in any Unrestricted Subsidiary  or any third-party (including any Joint Venture) that has been re-designated as a Restricted Subsidiary or  that has been merged, amalgamated or consolidated with or into, or transfers or conveys all of its assets to,  or is liquidated, wound up or dissolved into, the Borrower or any Restricted Subsidiary, in each case (x)  after the Effective Date and on or prior to such date (up to the lesser of (i) the Fair Market Value of the  Investments of the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary or third-party  at the time of such re-designation or merger, amalgamation or consolidation and (ii) the Fair Market Value  of the original Investment by the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary  or third-party; provided that, in the event such original Investment was made with cash, the Fair Market  value of such Investment shall be deemed to be the cash value) and (y) to the extent such Investment was  made using the Available Amount, plus  (d) the Net Proceeds of a sale or other Disposition of any Unrestricted Subsidiary or Joint  Venture (including the issuance of stock of an Unrestricted Subsidiary) received by the Borrower or any  Restricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary or Joint Venture was  made using the Available Amount (not to exceed the original amount of such Investments), plus  (e) to the extent not included in Consolidated Net Income, dividends or other distributions or  Returns on capital received by the Borrower or any Restricted Subsidiary from an Unrestricted Subsidiary  





 






9  or Joint Venture to the extent the Investment in such Unrestricted Subsidiary or Joint Venture was made  using the Available Amount (not to exceed the original amount of such Investments).  “Available Equity Amount” means, at any date of determination, a cumulative amount of cash or  Cash Equivalents or the Fair Market Value of other property or assets equal to (without duplication):  (a)  the greater of (i) $5,000,000 and (ii) 12.5% of Consolidated Cash EBITDA for the  Test Period most recently ended on or prior to the date of determination (measured as of the date  such determination based upon the financial statements most recently delivered on or prior to such  date pursuant to Section 5.01(a) or (b)), plus  (b) after the Suspension Period has ended, the aggregate amount of cash and Cash  Equivalents and the Fair Market Value of marketable securities or other property, in each case,  contributed to the capital of the Borrower, or the proceeds received by the Borrower from the  issuance of any Equity Interests of any Parent Entity (including Holdings) or the Borrower (or  incurrences of Indebtedness that have been converted into or exchanged for Qualified Equity  Interests of Holdings or the Borrower), in each case during the period after the Effective Date  through and including such date, but excluding (i) amounts received from Holdings, the Borrower  or any Restricted Subsidiary and (ii) all proceeds from the issuances of Disqualified Equity Interests  (for the avoidance of doubt, no transaction shall be made in reliance on this clause (b) during the  Suspension Period), plus   (c) Returns received after the Effective Date and on or prior to such date in cash or  Cash Equivalents by the Borrower and the Restricted Subsidiaries on Investments made using the  Available Equity Amount (not to exceed the original amount of such Investments), plus  (d) the aggregate amount as of such date of any Retained Declined Proceeds since the  Effective Date;  provided that the Available Equity Amount shall not include any Cure Amount.  “Available Excess Cash Flow Amount” means, at any date of determination, an amount equal to  (a) commencing with the fiscal year of the Borrower ending December 31, 2020, the sum of the amount of  Excess Cash Flow (only to the extent such Excess Cash Flow amount for any such fiscal year exceeds $0)  for each fiscal year of the Borrower in respect of which consolidated financial statements have been  delivered pursuant to Section 5.01(a) on or prior to such date, minus (b) the sum of the aggregate principal  amount of the portion of such Excess Cash Flow for such completed fiscal year that has been (or will be  for such completed fiscal year ended) after the Effective Date and prior to such date of determination  applied to the prepayment of the Term Loans or other Indebtedness in accordance with Section 2.11(d)  (without giving effect to any reduction in the dollar amount of such mandatory prepayment as a result of  any voluntary prepayment).  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  EEA Resolution Authority in respect of any liability of an EEA Financial Institution.  “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55  of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law for such EEA Member Country from time to time which is described in the EU Bail-In  Legislation Schedule.  





 






10  “Basel III” means, collectively, those certain agreements on capital requirements, leverage ratios  and liquidity standards contained in “Basel III:  A Global Regulatory Framework for More Resilient Banks  and Banking Systems,” “Basel III:  International Framework for Liquidity Risk Measurement, Standards  and Monitoring,” and “Guidance for National Authorities Operating the Countercyclical Capital Buffer,”  each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from  time to time), and as implemented by a Lender’s primary U.S. federal banking regulatory authority or  primary non-U.S. financial regulatory authority, as applicable.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership required  by the Beneficial Ownership Regulation, which certification shall be substantially similar in substance to  the form of Certification Regarding Beneficial Owners of Legal Entity Customers included as Appendix A  to the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) 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.”  “BHC Act Affiliate” of any party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.   “Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the  board of directors of such Person or any committee thereof duly authorized to act on behalf of such board,  (b) in the case of any limited liability company, the board of managers, board of directors, manager or  managing member of such Person or the functional equivalent of the foregoing, (c) in the case of any  partnership, the board of directors, board of managers, manager or managing member of a general partner  of such Person or the functional equivalent of the foregoing and (d) in any other case, the functional  equivalent of the foregoing.  “Board of Governors” means the Board of Governors of the Federal Reserve System of the United  States of America.  “Borrower” means (a) initially, Merger Sub, and (b) upon and after the consummation of the  Merger, Norvax, and shall include any Successor Borrower, to the extent applicable.  “Borrowing” means (a) Loans of the same Class and Type, made, converted or continued on the  same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect, or (b) a  Swingline Loan.  “Borrowing Minimum” means (a) in the case of a Term Loan Borrowing or a Revolving Loan  Borrowing, $1,000,000 and (b) in the case of a Swingline Loan, $100,000.  “Borrowing Multiple” means $100,000.  “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with  Section 2.03 and substantially in the form attached hereto as Exhibit B.  “Business Day” means any day that is not a Saturday, Sunday or other day on which commercial  banks in New York City are authorized or required by law to remain closed; provided that when used in  





 






11  connection with a Eurocurrency Loan the term “Business Day” shall also exclude any day on which banks  are not open for dealings in Dollar deposits in the London interbank market.  “Capital Expenditures” means, for any period, the additions to property, plant and equipment and  other capital expenditures of the Borrower and the Restricted Subsidiaries that are (or should be) set forth  in a consolidated statement of cash flows of the Borrower for such period prepared in accordance with  GAAP.  “Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures  (whether paid in cash or accrued as liabilities) by a Person during such period in respect of licenses or  purchased software or internally developed software and software enhancements that are (or should be) set  forth in a consolidated statement of cash flows of the Borrower for such period prepared in accordance with  GAAP.  “Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Agent, for the  benefit of one or more of the Issuing Banks or Revolving Lenders, as collateral for LC Exposure or  obligations of the Revolving Lenders to fund participations in respect of LC Exposure, cash or deposit  account balances under the sole dominion and control of the Collateral Agent or, if the Collateral Agent  and each Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to  documentation in form and substance reasonably satisfactory to the Collateral Agent and each applicable  Issuing Bank.  “Cash Collateral” and “Cash Collateralization” shall have meanings correlative to the  foregoing and shall include the proceeds of such cash collateral and other credit support.  “Cash Equivalents” means any of the following, to the extent owned by the Borrower or any  Restricted Subsidiary:  (a) Dollars, Euros, Sterling, Australian dollars, Canadian dollars, Yuan and such other  currencies held by it from time to time in the ordinary course of business;  (b) readily marketable obligations issued or directly and fully guaranteed or insured by the  government or any agency or instrumentality of (i) the United States, (ii) Switzerland or (iii) any member  nation of the European Union rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent  thereof) or better by Moody’s, having average maturities of not more than 24 months from the date of  acquisition thereof; provided that the full faith and credit of the United States or such member nation of the  European Union is pledged in support thereof;  (c) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any  commercial bank that (i) is a Lender or (ii) has combined capital and surplus of at least (x) $250,000,000  in the case of U.S. banks and (y) $100,000,000 (or the Dollar Equivalent as of the date of determination) in  the case of non-U.S. banks (any such bank meeting the requirements of clause (i) or (ii) above being an  “Approved Bank”), in each case with average maturities of not more than 24 months from the date of  acquisition thereof;  (d) commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the  parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation rated  A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s, in  each case with average maturities of not more than 24 months from the date of acquisition thereof;  (e) repurchase agreements entered into by any Person with an Approved Bank, a bank or trust  company (including any of the Lenders) or recognized securities dealer, in each case, having capital and  surplus in excess of (x) $250,000,000 in the case of U.S. banks and (y) $100,000,000 (or the Dollar  





 






12  Equivalent as of the date of determination) in the case of non-U.S. banks, in each case, for direct obligations  issued by or fully guaranteed or insured by the government or any agency or instrumentality of (i) the  United States, (ii) Switzerland or (iii) any member nation of the European Union rated A (or the equivalent  thereof) or better by S&P and A2 (or the equivalent thereof) or better by Moody’s, in which such Person  shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of  purchase thereof, a Fair Market Value of at least 100% of the amount of the repurchase obligations;  (f) marketable short-term money market and similar highly liquid funds either (i) having  assets in excess of (x) $250,000,000 in the case of U.S. banks or other U.S. financial institutions and (y)  $100,000,000 (or the Dollar Equivalent as of the date of determination) in the case of non-U.S. banks or  other non-U.S. financial institutions or (ii) having a rating of at least A-2 or P-2 from either S&P or Moody’s  (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from  another nationally recognized rating service);  (g) securities with average maturities of 24 months or less from the date of acquisition issued  or fully guaranteed by any state, commonwealth or territory of the United States, or by any political  subdivision or taxing authority of any such state, commonwealth or territory or by a foreign government  having an investment grade rating from either S&P or Moody’s (or the equivalent thereof);  (h) investments with average maturities of 24 months or less from the date of acquisition in  mutual funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof)  or better by Moody’s;  (i) instruments equivalent to those referred to in clauses (a) through (h) above denominated in  Euros or any other foreign currency comparable in credit quality and tenor to those referred to above and  customarily used by corporations for cash management purposes in any jurisdiction outside the United  States to the extent reasonably required in connection with any business conducted by any Subsidiary  organized in such jurisdiction;  (j) investments, classified in accordance with GAAP as current assets, in money market  investment programs that are registered under the Investment Company Act of 1940 or that are administered  by financial institutions having capital of at least $250,000,000, and, in either case, the portfolios of which  are limited such that substantially all of such investments are of the character, quality and maturity described  in clauses (a) through (i) of this definition;  (k) with respect to any Foreign Subsidiary: (i) obligations of the national government of the  country in which such Foreign Subsidiary maintains its chief executive office and principal place of  business; provided such country is a member of the Organization for Economic Cooperation and  Development, in each case maturing within one year after the date of investment therein, (ii) certificates of  deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and  existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office  and principal place of business; provided such country is a member of the Organization for Economic  Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2”  or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being  an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from the date  of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved  Foreign Bank;  (l) interest bearing instruments with a maximum maturity of 180 days in respect of which the  obligor is a G8 government or other G8 governmental agency or a G8 financial institution with credit ratings  





 






13  from S&P of at least “A-2” or the equivalent thereof or from Moody’s of at least “P-2” or the equivalent  thereof; and  (m) investment funds investing at least 90% of their assets in securities of the types described  in clauses (a) through (l) above.  “Cash Management Obligations” means (a) obligations in respect of any treasury management  services, overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and  cash management services or any automated clearing house transfers of funds and (b) other obligations in  respect of netting services, employee credit, commercial credit card, debit card, stored value card or  purchase card programs and similar arrangements.  “Cash Management Services” has the meaning assigned to such term in the definition of “Secured  Cash Management Obligations.”  “Casualty Event” means any event that gives rise to the receipt by the Borrower or any Restricted  Subsidiary of any insurance proceeds, condemnation awards or eminent domain awards in respect of any  equipment, fixed assets or real property (including any improvements thereon) to replace or repair such  equipment, fixed assets or real property.  “CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.  “Change in Control” means:  (a) the failure of Holdings, directly or indirectly through wholly-owned subsidiaries that are  Guarantors (including, for the avoidance of doubt, through wholly-owned subsidiaries that are subsidiaries  of the Borrower), to own all of the Equity Interests in the Borrower,  (b) prior to an IPO, the failure by the Permitted Holders to, directly or indirectly through one  or more holding companies, own beneficially and of record at least a majority of the outstanding Voting  Stock of Holdings, or  (c) after an IPO, any person, entity or “group” (within the meaning of Section 13(d)(3) or  Section 14(d)(2) of 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 the Permitted Holders (or any Parent  Entity of Holdings controlled directly or indirectly by the Permitted Holders), shall at any time have  acquired direct or indirect beneficial ownership of voting power of the outstanding Voting Stock of  Holdings having more than the greater of (A) 35.0% of the outstanding Voting Stock of Holdings and (B)  the percentage of the then-existing outstanding Voting Stock of Holdings owned in the aggregate, directly  or indirectly, beneficially, by the Permitted Holders, unless the Permitted Holders, directly or indirectly  through one or more Parent Entities of Holdings, have the right (pursuant to contract, proxy, ownership of  Equity Interests or otherwise) to designate or appoint (and do so designate or appoint) the Board of Directors  of Holdings.  For purposes of this definition and any related definition to the extent used for purposes of this  definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange  Act, (ii) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act,  but excluding any employee benefit plan of such Person or “group” and its subsidiaries and any Person  acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (iii) a Person or  group shall not be deemed to beneficially own securities subject to an equity or asset purchase agreement,  merger agreement or similar agreement (or voting or option or similar agreement related thereto) until the  





 






14  consummation of the transactions contemplated by such agreement, (iv) if any group includes one or more  Permitted Holders, the issued and outstanding Voting Stock of Holdings beneficially owned, directly or  indirectly, by any Permitted Holders that are part of such group shall not be treated as being beneficially  owned by any other member of such group for purposes of determining whether a Change in Control has  occurred and (v) a Person or group will not be deemed to beneficially own the Voting Stock of another  Person as a result of its ownership of the Voting Stock or other securities of such other Person’s Parent  Entity (or related contractual rights) unless it owns at least a majority of the total voting power of the Voting  Stock of such Parent Entity.  “Change in Law” means (a) the adoption of any rule, regulation, treaty or other law after the date  of this Agreement, (b) any change in any rule, regulation, treaty or other law or in the administration or  interpretation thereof by any Governmental Authority after the date of this Agreement or (c) the making or  issuance of any request, guideline or directive (whether or not having the force of law) of any Governmental  Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein  to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and any  requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) any requests,  rules, guidelines or directives promulgated by the Bank of International Settlements, the Basel Committee  on Banking Supervision (or any successor or similar authority) or 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, promulgated or issued after the date of this Agreement, but only to  the extent the relevant increased costs or loss of yield would have been included if they had been imposed  under applicable increased cost provisions, including, without limitation, for purposes of Section 2.15.  “Class” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, are Revolving Loans, Class A Revolving Loans, Class B Revolving  Loans, Other Revolving Loans, Initial Term Loans, 2020 Incremental Term Loans, 2021 Incremental Term  Loans, 2021-2 Incremental Term Loans, any other Incremental Term Loans, Replacement Revolving  Loans, Other Term Loans, or Swingline Loans, (b) any Commitment, refers to whether such Commitment  is a Revolving Commitment, Class A Revolving Commitment, Class B Revolving Commitment, Other  Revolving Commitment, Replacement Revolving Commitment, Initial Term Loan Commitment, 2020  Incremental Term Loan Commitment, 2021 Incremental Term Loan Commitment, 2021-2 Incremental  Term Loan Commitment, any other Incremental Commitment or Other Term Commitment and (c) any  Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of  Loans or Commitments.  Other Term Commitments, Other Term Loans, Other Revolving Commitments  (and the Other Revolving Loans made pursuant thereto), Incremental Commitments and Incremental Term  Loans, Replacement Revolving Commitments (and Replacement Revolving Loans made pursuant thereto)  that have different terms and conditions shall be construed to be in different Classes.  “Class A Revolving Commitment” means (a) prior to the Amendment No. 5 Effective Date, with  respect to each Original Revolving Lender, its Original Revolving Commitment and (b) on or after  Amendment No. 5 Effective Date, (i) with respect to each Original Revolving Lender that is not party to  the Amendment No. 5 but whose name is set forth on Schedule 1-B to Amendment No. 5, the amount set  forth on Schedule 1-B to Amendment No. 5 opposite such Lender’s name as such Lender’s Commitment  under the heading “Class A Revolving Commitments”, which Commitment shall terminate on the  Revolving Maturity Date, as such Class A Revolving Commitment may be reduced from time to time  pursuant to the terms hereof and (ii) in the case of any Lender that receives an assignment of any portion  of a Class A Revolving Commitment, the amount specified as such Lender’s “Class A Revolving  Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the  Total Class A Revolving Commitment, as such Class A Revolving Commitment may be reduced from time  to time pursuant to the terms hereof.  As of Amendment No. 5 Effective Date, the aggregate amount of the  Class A Revolving Commitments outstanding is $30,000,000.  





 






15  “Class A Revolving Facility” means the revolving credit facility represented by the Class A  Revolving Commitments.  “Class A Revolving Lender” means (a) prior to the Amendment No. 5 Effective Date, each Original  Revolving Lender, (b) as of Amendment No. 5 Effective Date, each Original Revolving Lender that is not  party to Amendment No. 5 but whose name and the aggregate principal amount of its Class A Revolving  Commitment are set forth on Schedule 1-B to Amendment No. 5 and (c) on or after the Amendment No. 5  Effective Date, without duplication of clause (b) above as of Amendment No. 5 Effective Date, each Lender  that holds a Class A Revolving Commitment.  “Class A Revolving Loan” means a Revolving Credit Loan made by any Class A Revolving Lender  pursuant to its Class A Revolving Commitment.  “Class B Revolving Commitment” means (a) on or after Amendment No. 5 Effective Date, with  respect to each Original Revolving Lender that is party to Amendment No. 5, the amount set forth on  Schedule I-B to Amendment No. 5 opposite such Lender’s name as such Lender’s Commitment under the  heading “Class B Revolving Commitments”, which Commitment shall terminate on the Revolving Maturity  Date, as such Class B Revolving Commitment may be reduced from time to time pursuant to the terms  hereof, (b) in the case of any Lender that receives an assignment of any portion of a Class B Revolving  Commitment, the amount specified as such Lender’s “Class B Revolving Commitment” in the Assignment  and Acceptance pursuant to which such Lender assumed a portion of the Total Class B Revolving  Commitment, as such Class B Revolving Commitment may be reduced from time to time pursuant to the  terms hereof and (c) in the case of any Class B Revolving Lender that increases its Class B Revolving  Commitment or becomes an Incremental Revolving Credit Commitment Increase Lender, in each case  pursuant to Section 2.14, the amount specified in the applicable Incremental Agreement, as such Class B  Revolving Commitment may be reduced from time to time pursuant to the terms hereof.  As of Amendment  No. 5 Effective Date, the aggregate amount of the Class B Revolving Commitments outstanding is  $170,000,000.  “Class B Revolving Facility” means the revolving credit facility represented by the Class B  Revolving Commitments.  “Class B Revolving Lender” means (a) as of Amendment No. 5 Effective Date, each Original  Revolving Credit Lender that is party to Amendment No. 5 and whose name and the aggregate principal  amount of its Class B Revolving Commitment are set forth on Schedule 2 to Amendment No. 5 and (b) on  or after Amendment No. 5 Effective Date, without duplication of clause (a) above as of Amendment No. 5  Effective Date, each Lender that holds a Class B Revolving Commitment.  “Class B Revolving Loan” means a Revolving Credit Loan made by any Class B Revolving Lender  pursuant to its Class B Revolving Commitment.  “Code” means the Internal Revenue Code of 1986, as amended from time to time.  “Collateral” means any and all assets, whether real or personal, tangible or intangible, on which  Liens are purported to be granted pursuant to the Security Documents as security for the Secured  Obligations.  “Collateral Agent” has the meaning assigned to such term in the Collateral Agreement.  “Collateral Agreement” means the Collateral Agreement among Holdings, the Borrower, each  other Loan Party and the Collateral Agent, substantially in the form of Exhibit C.  





 






16  “Collateral and Guarantee Requirement” means, at any time, the requirement that:  (a) the Administrative Agent shall have received from (i) Holdings, the Borrower and each  other Domestic Subsidiary (other than an Excluded Subsidiary) either (x) a counterpart of the Guarantee  Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that  becomes or is required to become a Loan Party after the Effective Date (including by ceasing to be an  Excluded Subsidiary), a supplement to the Guarantee Agreement, in the form specified therein, duly  executed and delivered on behalf of such Person and (ii) Holdings, the Borrower and each Subsidiary Loan  Party either (x) a counterpart of the Collateral Agreement duly executed and delivered on behalf of such  Person or (y) in the case of any Person that becomes or is required to become a Loan Party after the Effective  Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Collateral Agreement, in the  form specified therein, duly executed and delivered on behalf of such Person, in each case under this clause  (a) together with, in the case of any such Loan Document executed and delivered after the Effective Date,  documents of the type referred to in Section 4.01(b) and Section 4.01(d);  (b) all outstanding Equity Interests of the Borrower and the Restricted Subsidiaries (other than  any Equity Interests constituting Excluded Assets) owned by or on behalf of any Loan Party shall have  been pledged pursuant to the Collateral Agreement and (except in the case of Equity Interests of Immaterial  Subsidiaries or of Persons who are not Restricted Subsidiaries, including any Joint Ventures that are not  Restricted Subsidiaries) the Collateral Agent shall have received certificates or other instruments  representing all such Equity Interests (if any), together with undated stock powers or other instruments of  transfer with respect thereto endorsed in blank;  (c) (i) other than to the extent constituting an Excluded Asset, if any Indebtedness for borrowed  money of any Person other than Holdings, the Borrower or the Restricted Subsidiaries is (x) owing to any  Loan Party, (y) in a principal amount in excess of $2,500,000 and (z) evidenced by a promissory note, such  promissory note shall have been pledged pursuant to the Collateral Agreement and the Collateral Agent  shall have received all such promissory notes, together with undated instruments of transfer with respect  thereto endorsed in blank and (ii) all Indebtedness for borrowed money of Holdings, the Borrower and each  Restricted Subsidiary that is owing to any Loan Party shall be evidenced by the Intercompany Note, and  such Intercompany Note shall have been pledged pursuant to the Collateral Agreement and the Collateral  Agent shall have received such Intercompany Note, together with undated instruments of transfer with  respect thereto endorsed in blank;  (d) other than to the extent constituting an Excluded Asset, all certificates, agreements,  documents and instruments, including Uniform Commercial Code financing statements and intellectual  property security agreements, required by the Security Documents, Requirements of Law and reasonably  requested by the Administrative Agent to be filed, delivered, registered or recorded to create the Liens  intended to be created by the Security Documents and perfect such Liens to the extent required by, and with  the priority required by, the Security Documents and the other provisions of the term “Collateral and  Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative  Agent in proper form for filing, registration or recording, in each case, subject to exceptions and limitations  otherwise set forth in this Agreement and the other Loan Documents;   (e) other than with respect to any Excluded Account, each Loan Party shall use reasonable best  efforts to obtain a control agreement (each, an “Account Control Agreement”) (or, if any such Loan Party  is unable to obtain a control agreement from the financial institution where any deposit account, securities  account or commodities account is located, it will relocate such account to another financial institution and  obtain a control agreement), with the Collateral Agent and any bank with which such Loan Party maintains  a deposit account, securities account or commodities account (each as defined in the UCC) (collectively,  





 






17  the “Controlled Accounts”) not later than 90 days following the opening or acquisition of any such account  (or such longer period as the Administrative Agent may agree in its sole discretion); and  (f) the Administrative Agent shall have received (i) counterparts of a Mortgage with respect  to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property,  (ii) a policy or policies of title insurance or a marked unconditional commitment or binder thereof issued  by a nationally recognized title insurance company reasonably acceptable to the Administrative Agent  insuring the Lien of each such Mortgage as a first priority Lien on the title to such Mortgaged Property  described therein, for an amount no less than the Fair Market Value of such Mortgaged Property together  with such endorsements as the Collateral Agent may reasonably request and which are available at  commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property is located, (iii)  such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are  customarily requested by the title company to induce the title company to issue the title policies and  endorsements contemplated above, (iv) evidence reasonably acceptable to the Administrative Agent of  payment by Holdings, the Borrower or any other Subsidiary of all title policy premiums, search and  examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs  and expenses required for the recording of the Mortgages and issuance of the title policies referred to above,  (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the  so called comprehensive and other survey related endorsements and to remove the standard survey  exceptions from the title policies and endorsements contemplated above (provided, however, that a survey  shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable  and customary survey related coverages (including, without limitation, survey related endorsements) in the  applicable title insurance policy based on an existing survey and/or such other documentation as may be  reasonably satisfactory to the title insurer), (vi) if required pursuant to the Flood Insurance Laws, completed  “Life of Loan” Federal Emergency Management Agency (“FEMA”) Standard Flood Hazard Determination  with respect to each Mortgaged Property subject to the applicable FEMA rules and regulations (together  with a notice about special flood hazard area status and flood disaster assistance duly executed by Holdings,  the Borrower and each Loan Party relating thereto), (vii) if any Mortgaged Property is located in an area  determined by FEMA to have special flood hazards, evidence of such flood insurance as may be required  under any Requirements of Law, including Regulation H of the Board of Governors and the other Flood  Insurance Laws and as required under Section 5.07, (viii) such legal opinions as the Administrative Agent  may reasonably request with respect to the enforceability of any such Mortgage and such other customary  matters as are reasonably requested by the Administrative Agent, and (ix) existing environmental  assessment reports, to the extent available and in the possession or reasonable control of the Borrower or  its Subsidiaries.   Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any  other Loan Document to the contrary, (a) the foregoing provisions of this definition shall not require the  creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions  or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees  by any Subsidiary (i) if such assets constitute Excluded Assets, (ii) if, and for so long as and to the extent  that the Administrative Agent and the Borrower reasonably agree that the cost, burden, difficulty or  consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such  title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees  outweighs the benefits to be obtained by the Lenders therefrom, (iii) if and for so long as and to the extent  that the Borrower reasonably determines in consultation with (but without the consent of) the  Administrative Agent that such creation or perfection of pledges of or security interest or Guarantee would  result in any material adverse Tax consequences to Holdings, the Borrower or one of their respective  Subsidiaries or to any direct or indirect Parent Entity or other equityholder of any of the foregoing  (including the imposition of material withholding, recording or other Taxes) and/or (iv) if the grant or  perfection of a security interest in such asset would (A) be prohibited or restricted by any applicable license,  





 






18  franchise, charter, authorization or other applicable Requirement of Laws (including any legally effective  prohibition or restriction on such grant or perfection), (B) require the consent of any applicable  Governmental Authority (except to the extent such consent has been obtained), (C) violate the terms of any  contract (to the extent binding on such Person or property at the time of the acquisition thereof and not  incurred in contemplation of such acquisition) (in each case of (A), (B) and (C), after giving effect to the  applicable anti-assignment provisions of the UCC or other similar applicable law) or (D) trigger termination  of any contract pursuant to any “change of control” or similar provision (to the extent binding on such  Person or property at the time of the acquisition thereof and not incurred in contemplation of such  acquisition); it being understood that the Collateral shall include any proceeds and/or receivables (other  than to the extent constituting Excluded Assets) arising out of any contract described in clause (a)(iv)(C)  and (D) to the extent the assignment of such proceeds or receivables is expressly deemed effective under  the UCC or other similar applicable law notwithstanding the relevant prohibition, violation or termination  right, (b) Liens required to be granted from time to time pursuant to the term “Collateral and Guarantee  Requirement” shall be subject to exceptions and limitations set forth herein and in the Security Documents  as in effect on the Effective Date, (c) no control agreements or other control or similar arrangements shall  be required with respect to any Excluded Account, (d) no perfection actions (beyond the filing of a financing  statement under the Uniform Commercial Code) shall be required, nor shall the Administrative Agent or  Collateral Agent be authorized to take any actions (beyond the filing of a financing statement under the  Uniform Commercial Code) with respect to (A) commercial tort claims with a value less than $2,500,000,  (B) Vehicles and other assets subject to certificates of title, (C) letter of credit rights, (D) promissory notes  evidencing debt for borrowed money by any Person in a principal amount individually or in an aggregate  of less than $2,500,000, and (E) (i) the Equity Interests of any Immaterial Subsidiary and/or (ii) the Equity  Interests of a Person that is not a subsidiary, which Person, if a Subsidiary, would constitute an Immaterial  Subsidiary, including any Joint Venture that is not a Subsidiary, (e) no actions in any non-U.S. jurisdiction  or required by the laws of any non-U.S. jurisdiction shall be required to be taken, nor shall the  Administrative Agent be authorized to take any such action, to create any security interests in assets located  or titled outside of the United States (including any Equity Interests of Foreign Subsidiaries and any Foreign  Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being  understood that there shall be no security agreements or pledge agreements governed under the laws of any  non-U.S. jurisdiction), and (f) no Loan Party shall be required to seek any landlord lien waiver, estoppel,  warehouseman waiver or other collateral access or similar letter or agreement.  The Administrative Agent  (in its reasonable discretion) may grant extensions of time for the creation and perfection of security  interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular  assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Effective Date,  the timelines set forth in Schedule 5.14 or in connection with assets acquired, or Subsidiaries formed or  acquired, after the Effective Date) where it determines that such action cannot be accomplished without  undue effort or expense by the time or times at which it would otherwise be required to be accomplished  by this Agreement or the Security Documents.    “Commitment” means, with respect to any Lender, its Incremental Commitment, its Revolving  Commitment (including the 2020 Incremental Revolving Commitments, Incremental No. 3 Revolving  Commitments, Incremental No. 4 Revolving Commitments, Class A Revolving Commitments and Class B  Revolving Commitments), Replacement Revolving Commitment, Other Revolving Commitment of any  Class, Initial Term Loan Commitment, 2020 Incremental Term Loan Commitment, 2021 Incremental Term  Loan Commitment, 2021-2 Incremental Term Loan Commitment or Other Term Commitment of any Class  or any combination thereof (as the context requires).  “Commitment Letter” means that certain Commitment Letter, dated as of August 15, 2019, by and  among Blizzard Parent, LLC, Owl Rock Capital Corporation, Owl Rock Capital Corporation II, Owl Rock  Technology Finance Corp. and Owl Rock Capital Advisors, LLC, MidCap Financial Trust and Benefit  Street Partners L.L.C..  





 






19  “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.  “Company Competitor” means any competitor of Holdings, the Borrower or any of its Subsidiaries.   “Company Materials” has the meaning assigned to such term in Section 5.01.  “Competitor Debt Fund Affiliate” means, with respect to any Company Competitor or any Affiliate  thereof, any debt fund, investment vehicle, regulated bank entity or unregulated lending entity that is (i)  engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions  of credit in the ordinary course of business and (ii) managed, sponsored or advised by any Person that is  Controlling, Controlled by or under common Control with the relevant Company Competitor or Affiliate  thereof, but only to the extent that no personnel involved with the investment in the relevant Company  Competitor (A) makes (or has the right to make or participate with others in making) investment decisions  on behalf of, or otherwise cause the direction of the investment policies of, such debt fund, investment  vehicle, regulated bank entity or unregulated entity or (B) except in its capacity as a Lender or potential  lender, has access to any information (other than information that is publicly available) relating to Holdings,  the Borrower and/or any entity that forms part of any of their respective businesses (including any of their  respective subsidiaries).  “Consolidated Cash EBITDA” means, for any period, Consolidated EBITDA, plus 100% of the  net decrease in the Contract Asset Balance on the last day of such period compared to the first day of such  period, less 100% of the net increase in the Contract Asset Balance on the last day of such period  compared to the first day of such period.  “Compliance Certificate” means a Compliance Certificate required to be delivered pursuant to  Section 5.01.  “Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period, plus:   (a) without duplication and to the extent already deducted or, in the case of clauses  (v), (viii), (xiii) and (xix) below, to the extent not included (and not added back or excluded) in  arriving at such Consolidated Net Income, the sum of the following amounts for such period:  (i) total interest expense and, to the extent not reflected in such total interest expense,  non-cash interest payments, premium payments, debt discount, fees, charges and related expenses  incurred in connection with borrowed money (including capitalized interest) or in connection with  the deferred purchase price of assets, the implied interest component of synthetic leases with respect  to such period, interest in respect of Financing Lease Obligations, any discounts, yield and other  fees and charges (including any interest expense) related to any Permitted Receivables Financing,  any losses on hedging obligations or other derivative instruments entered into for the purpose of  hedging interest rate risk, net of interest income and gains on such hedging obligations or such  derivative instruments, and commissions, discounts and other fees and charges owed with respect  to bankers acceptances, and bank and letter of credit fees and costs of surety bonds in connection  with financing activities (whether amortized or immediately expensed),  (ii) provision for taxes based on income, profits, revenue or capital, and sales taxes,  including federal, foreign and state income, franchise, excise and similar taxes based on income,  profits, revenue or capital and foreign withholding taxes paid or accrued during such period  (including in respect of repatriated funds) including penalties and interest related to such taxes or  arising from any tax examinations,  





 






20  (iii) depreciation and amortization (including amortization of (A) deferred financing  commissions, fees, expenses, yield or costs (including original issue discount) and (B) intangible  assets, including goodwill and Capitalized Software Expenditures),  (iv) other non-cash charges (provided, in each case, that if any non-cash charges  represent an accrual or reserve for potential cash items in any future period, (A) the Borrower may  determine not to add back such non-cash charge in the current period or (B) to the extent the  Borrower decides to add back such non-cash charge, the cash payment in respect thereof in such  future period shall be subtracted from Consolidated EBITDA to such extent), and excluding  amortization of a prepaid cash item that was paid in a prior period,  (v) the aggregate amount of Consolidated Net Income attributable to non-controlling  interests of third parties in any non wholly-owned Subsidiary, excluding cash distributions in  respect thereof to the extent already included in Consolidated Net Income,  (vi) (A) the amount of management, monitoring, consulting and advisory fees,  indemnities and related expenses paid or accrued in such period to (or on behalf of) any Investor  (including any termination fees payable in connection with the early termination of management  and monitoring agreements and any expenses paid in connection with the limited partnership  agreement, unitholder agreement or similar agreement applicable to any Parent Entity (in each case,  including any amortization thereof)), (B) the amount of any fees or reimbursements (including  pursuant to any management agreement) of directors, officers, employees, consultants and board  observers (provided that the aggregate amount of consulting fees, costs and expenses paid to the  nationally recognized consulting firm identified prior to the Amendment No. 7 Effective Date to  the Lenders and the Administrative Agent for any fiscal quarter ending after March 31, 2023 shall  not be added back pursuant to this clause (B), but instead shall be subject to clause (a)(xx) of this  definition and/or clause (b) of Consolidated Net Income), (C) the amount of payments made to  option holders of Holdings, the Borrower or any Parent Entity in connection with, or as a result of,  any distribution being made to shareholders of such Person or its direct or indirect Parent Entities,  which payments are being made to compensate such option holders as though they were  shareholders at the time of, and entitled to share in, such distribution, and the employer portion of  any payroll taxes associated therewith, in each case to the extent permitted in the Loan Documents,  and (D) amounts of the type described in clauses (A) through (C) of this paragraph (vi) paid or  accrued on or prior to the Effective Date (and following the Effective Date, with respect to  indemnification or other amounts owed in respect of arrangements in effect prior to the Effective  Date) and payable to Affiliates of the Target prior to the Effective Date;  (vii) losses or discounts on sales of receivables and related assets in connection with  any Permitted Receivables Financing,  (viii) cash receipts (or any netting arrangements resulting in reduced cash expenditures)  not included in the calculation of Consolidated EBITDA in any prior period to the extent non-cash  gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant  to clause (c) below for any previous period and not added back,  (ix) (A) any costs or expenses incurred or paid by the Borrower (or Holdings or any  Parent Entity) or any Restricted Subsidiary pursuant to any management equity plan, stock option  plan, “phantom” stock plans or any other management or employee benefit plan or long term  incentive plan or agreement, any severance agreement or any stock subscription or shareholder  agreement, non-compete agreements and other similar agreements and the employer portion of any  payroll taxes associated therewith, and (B) any charge in connection with the rollover, acceleration  





 






21  or payout of equity interests held by management and members of the board of the Borrower (or  Holdings, or any Parent Entity) and the employer portion of any payroll taxes associated therewith,  in each case under this clause (B), to the extent any such cash charge is funded with net cash  proceeds contributed to the Borrower as a capital contribution or as a result of Net Proceeds of an  issuance of Equity Interests (other than Disqualified Equity Interests, any “specified equity  contribution” or any “excluded contribution” (other than any such excluded contribution designated  for such purpose)) of the Borrower,  (x) 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,  (xi) charges attributable to, and payments of, legal settlements, fines, judgments or  orders,  (xii) earn-out obligations and other post-closing obligations to sellers (including  transaction tax benefit payments or to the extent accounted for as bonuses or otherwise) incurred  in connection with the Transactions and/or any Acquisition Transaction or other Investment  (including any acquisition or other investment consummated prior to the Effective Date) or  adjustments thereof, which is paid or accrued during the applicable period,   (xiii) to the extent not otherwise included in Consolidated Net Income, proceeds of  business interruption insurance in an amount representing the earnings for the applicable period  that such proceeds are intended to replace (whether or not then received so long as the Borrower in  good faith expects to receive such proceeds within the next four fiscal quarters (it being understood  that to the extent such proceeds are not actually received within such fiscal quarters, such proceeds  shall be deducted in calculating Consolidated EBITDA for such fiscal quarters)),  (xiv) the amount of any charge or deduction associated with any Restricted Subsidiary  that is attributable to any non-controlling interest or minority interest of any third party,  (xv) (A) the amount of any charge in connection with a single or one-time event,  including, without limitation, in connection with the Transactions and/or any Acquisition  Transaction or other Investment consummated after the Effective Date (including, without  limitation, legal, accounting and other professional fees and expenses incurred in connection with  acquisitions and other investments made prior to the Effective Date) and (B) charges, expenses or  losses incurred in such period in connection with any Tax Restructuring (in each case, whether or  not consummated); provided that the aggregate amount added to Consolidated EBITDA pursuant  to this clause (a)(xv), when combined, without duplication, with any amount added pursuant to  clauses (a)(xvi), (a)(xx) and (b)(1) of this definition, excluded pursuant to clauses (a) and (b) of the  definition of “Consolidated Net Income” and included pursuant to Section 1.11(c) for any Test  Period shall not exceed (x) for purpose of any calculation of Consolidated EBITDA under this  Agreement, an amount equal to 20.0% of Consolidated EBITDA for such Test Period (calculated  prior to giving effect to such add-backs) and (y) for purposes of any calculation of Consolidated  Cash EBITDA under this Agreement, an amount equal to 25.0% of Consolidated Cash EBITDA  for such Test Period (calculated prior to giving effect to such add-backs),  (xvi) charges relating to the sale of products in new locations, including, without  limitation, start-up costs, initial testing and registration costs in new markets, the cost of feasibility  





 






22  studies, travel costs for employees engaged in activities relating to any or all of the foregoing and  the allocation of general and administrative support in connection with any or all of the foregoing;  provided that the aggregate amount added to Consolidated EBITDA pursuant to this clause (a)(xvi),  when combined, without duplication, with any amount added pursuant to clauses (a)(xv), (a)(xx)  and (b)(1) of this definition, excluded pursuant to clauses (a) and (b) of the definition of  “Consolidated Net Income” and included pursuant to Section 1.11(c) for any Test Period shall not  exceed (x) for purpose of any calculation of Consolidated EBITDA under this Agreement, an  amount equal to 20.0% of Consolidated EBITDA for such Test Period (calculated prior to giving  effect to such add-backs) and (y) for purposes of any calculation of Consolidated Cash EBITDA  under this Agreement, an amount equal to 25.0% of Consolidated Cash EBITDA for such Test  Period (calculated prior to giving effect to such add-backs),  (xvii) charges associated with, or in anticipation of, or preparation for, compliance with  the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in  connection therewith and charges relating to compliance with the provisions of the Securities Act  and the Exchange Act, as applicable to companies with equity or debt securities held by the public,  the rules of national securities exchange companies with listed equity or debt securities,  employees’, consultants’, directors’ or managers’ compensation, fees and expense reimbursement,  charges relating to investor relations, shareholder meetings and reports to shareholders or  debtholders, directors’ and officers’ insurance and other executive costs, legal and other  professional fees and listing fees (collectively, “Public Company Costs”),  (xviii) [reserved],  (xix) add-backs and adjustments identified in the quality of earnings analysis prepared  by PricewaterhouseCoopers LLP dated June 8, 2019 (the “QofE Report”) and delivered to the Joint  Lead Arrangers,  (xx) costs, expenses, charges, accruals, reserves or expenses, in each case incurred in  such period and attributable to the undertaking and/or the implementation of cost savings  initiatives, operating expense reductions and other similar costs restructurings, strategic initiatives  and any accruals or reserves (including restructuring and integration costs related to acquisitions  after the Effective Date and adjustments to existing reserves) whether or not classified as  restructuring expense on the consolidated financial statements; provided that the aggregate amount  added to Consolidated EBITDA pursuant to this clause (a)(xx) (other than the aggregate amount of  vendor and real estate restructuring charges and/or costs and fees, costs, charges and expenses paid  to the nationally recognized consulting firm identified prior to the Amendment No. 7 Effective Date  to the Lenders and the Administrative Agent, in each case, for any fiscal quarter ending on or prior  to March 31, 2023), when combined, without duplication, with any amount added pursuant to  clauses (a)(xv), (a)(xvi) and (b)(1) of this definition, excluded pursuant to clauses (a) and (b) of the  definition of “Consolidated Net Income” and included pursuant to Section 1.11(c) for any Test  Period shall not exceed (x) for purpose of any calculation of Consolidated EBITDA under this  Agreement, an amount equal to 20.0% of Consolidated EBITDA for such Test Period (calculated  prior to giving effect to such add-backs) and (y) for purposes of any calculation of Consolidated  Cash EBITDA under this Agreement, an amount equal to 25.0% of Consolidated Cash EBITDA  for such Test Period (calculated prior to giving effect to such add-backs); and  (xxi) operating expenses incurred on or prior to the Effective Date attributable to (A)  salary obligations paid to employees terminated prior to the Effective Date and (B) wages paid to  executives in excess of the amounts the Borrower is required to pay pursuant to its employment  agreements,  





 






23  plus  (b) (1) without duplication, the amount of “run rate” cost savings, operating expense  reductions and synergies related to the Transactions and any Specified Transaction, any restructuring, cost  saving initiative or other initiative that are projected by the Borrower in good faith to be realized as a result  of actions that have been taken or initiated or are expected to be taken or initiated on or prior to the date  that six fiscal quarters after the date of consummation of the Transactions, such Specified Transaction,  restructuring, cost saving initiative or other initiative, in each case, as applicable, 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 the Borrower or any of the Restricted Subsidiaries  (whether accounted for on the financial statements of any such Joint Venture or the Borrower; provided  that the share of any such “run rate” cost savings, operating expense reductions and synergies with respect  to a Joint Venture that are to be allocated to the Borrower or any of the Restricted Subsidiaries shall not  exceed the total amount thereof for any such Joint Venture multiplied by the percentage of income of such  Joint Venture reasonably projected by the Borrower in good faith to be included in Consolidated Net  Income for the relevant Test Period) with respect to any of the Transactions, Specified Transaction and  any restructuring, cost saving initiative or other initiative (which cost savings shall be added to  Consolidated EBITDA for each Test Period until fully realized and shall be calculated on a pro forma basis  as though such cost savings had been realized on the first day of the relevant Test Period, net of the amount  of actual benefits realized from such actions); provided that (A) such cost savings are reasonably  identifiable and factually supportable and (B) no cost savings, operating expense reductions or synergies  shall be added pursuant to this clause (b) to the extent duplicative of any expenses or charges relating to  such cost savings, operating expense reductions or synergies that are included in clause (a) above or  otherwise added back in the computation of Consolidated EBITDA (whether through a pro forma  adjustment or otherwise) for such period (it being understood and agreed that “run rate” shall mean the  full recurring benefit that is associated with any action taken) and (C) the aggregate amount added to  Consolidated EBITDA pursuant to this clause (b)(1), when combined, without duplication, with any  amount added pursuant to clauses (a)(xv), (a)(xvi) and (a)(xx) of this definition, excluded pursuant to  clauses (a) and (b) of the definition of “Consolidated Net Income” and included pursuant to Section 1.11(c)  for any Test Period shall not exceed (x) for purpose of any calculation of Consolidated EBITDA under  this Agreement, an amount equal to 20.0% of Consolidated EBITDA for such Test Period (calculated prior  to giving effect to such add-backs) and (y) for purposes of any calculation of Consolidated Cash EBITDA  under this Agreement, an amount equal to 25.0% of Consolidated Cash EBITDA for such Test Period  (calculated prior to giving effect to such add-backs) and (2) other adjustments and add-backs calculated in  accordance with Regulation S-X;  less  (c) without duplication and (other than with respect to clauses (ii) and (iii) below) to the  extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such  period:  (i) non-cash gains (excluding any non-cash gain to the extent it represents the reversal  of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or  Consolidated EBITDA in any prior period),  (ii) the amount of any non-controlling interest consisting of loss attributable to non- controlling interests of third parties in any Restricted Subsidiary that is not a wholly owned  subsidiary added to and not deducted in such period from Consolidated Net Income,   





 






24  (iii) cash expenditures (or any netting arrangements resulting in increased cash  expenditures) not representing Consolidated EBITDA in any period to the extent non-cash losses  relating to such expenditures were added to the calculation of Consolidated EBITDA for any  previous periods and not subtracted back; and   (iv) interest expense and principal payments made by any Receivables Subsidiary in  respect of any Permitted Receivables Financing, but excluding (A) payments of principal to the  extent effecting a Refinancing thereof or (B) any other prepayment of any such Permitted  Receivables Financing, but only to the extent that any remaining Permitted Receivables Financing  Assets formerly subject to any such Permitted Refinancing Facility are transferred by the  Receivables Subsidiary to a the Borrower or a Restricted Subsidiary (other than a Receivables  Subsidiary) in connection with such prepayment,  in each case, as determined on a consolidated basis for the Borrower and the Restricted Subsidiaries in  accordance with GAAP; provided that:  (I) there shall be included in determining Consolidated EBITDA for any period,  without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by  the Borrower or any Restricted Subsidiary during such period (other than any Unrestricted  Subsidiary) whether such acquisition occurred before or after the Effective Date to the extent not  subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA  of any related Person, property, business or assets to the extent not so acquired) (each such Person,  property, business or asset acquired, including pursuant to a transaction consummated prior to the  Effective Date, and not subsequently so disposed of, an “Acquired Entity or Business”), and the  Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary  during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired  EBITDA of such Pro Forma Entity for such period (including the portion thereof occurring prior  to such acquisition or conversion) determined on a historical pro forma basis,  (II) there shall be excluded in determining Consolidated EBITDA for any period the  Disposed EBITDA of any Person, property, business or asset (other than any Unrestricted  Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued  operations by the Borrower or any Restricted Subsidiary during such period (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) (each such Person,  property, business or asset so sold, transferred or otherwise disposed of, closed or classified, a “Sold  Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into  an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), in  each case based on the Disposed EBITDA of such Sold Entity or Business or Converted  Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale,  transfer, disposition, closure, classification or conversion) determined on a historical pro forma  basis, and  (III) Consolidated EBITDA shall be increased (with respect to losses) or decreased  (with respect to gains) by, without duplication, any net realized gains and losses relating to  (i) amounts denominated in foreign currencies resulting from the application of FASB ASC 830  (including net realized gains and losses from exchange rate fluctuations on intercompany balances  and balance sheet items, net of realized gains or losses from related Swap Agreements (entered into  in the ordinary course of business or consistent with past practice)) or (ii) any other amounts  denominated in or otherwise trued-up to provide similar accounting as if it were denominated in  foreign currencies.  





 






25  Notwithstanding the foregoing, but subject to any adjustment as set forth above in clauses (I) and  (II) of the immediately preceding proviso with respect to Acquisitions and Dispositions occurring prior to,  on and following the Effective Date and other adjustments contemplated by Section 1.11 and clause (b)  above, Consolidated EBITDA shall be $5,200,000, $19,500,000, $13,000,000 and $135,700,000 for the  fiscal quarters ended March 31, 2019, June 30, 2019, September 30, 2019 and December 31, 2019,  respectively.  “Consolidated Net Income” means, for any period, the Net Income of the Borrower and the  Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP,  excluding, without duplication:  (a) extraordinary, exceptional, unusual or non-recurring gains or losses (less all fees and  expenses relating thereto) or expenses; provided that the aggregate amount excluded pursuant to clause (a)  of this definition, when combined, without duplication, with amounts added to Consolidated EBITDA  pursuant to clauses (a)(xv), (a)(xvi), (a)(xx) and (b)(1) of the definition of “Consolidated EBITDA”,  excluded pursuant to clause (b) of the definition of “Consolidated Net Income” and included pursuant to  Section 1.11(c), in each case, for any Test Period shall not exceed (x) for purpose of any calculation of  Consolidated EBITDA under this Agreement, an amount equal to 20.0% of Consolidated EBITDA for such  Test Period (calculated prior to giving effect to such add-backs) and (y) for purposes of any calculation of  Consolidated Cash EBITDA under this Agreement, an amount equal to 25.0% of Consolidated Cash  EBITDA for such Test Period (calculated prior to giving effect to such add-backs),   (b) restructuring charges, severance costs, security, relocation costs, integration and facilities’  opening costs, redundancy charges, any charges relating to any Tax Restructuring, business optimization  charges, including related to new product introductions, systems implementation charges, charges relating  to entry into a new market, consulting charges, product and intellectual property development, software  development charges, charges associated with new systems design, project startup charges, information  technology charges, charges in connection with new operations, corporate development charges, recruiting  fees, signing costs, retention or completion bonuses (and the employer portion of any payroll taxes  associated therewith), transition costs, costs (including in respect of employees and management) related  to establishing new facilities or reserves or related to discontinuation/closure/consolidation of facilities,  internal costs in respect of strategic initiatives, duplicative rent expense, implementation of any enhanced  accounting function (including in connection with becoming a standalone entity or public company) and  curtailments or modifications to pension and post-retirement employee benefit plans (including any  settlement of multi-employer plan or pension liabilities), in each case, incurred during such period; provided  that the aggregate amount excluded pursuant to clause (b) of this definition (other than the aggregate amount  of vendor and real estate restructuring charges and/or costs and fees, costs, charges and expenses paid to  the nationally recognized consulting firm identified prior to the Amendment No. 7 Effective Date to the  Lenders and the Administrative Agent, in each case, for any fiscal quarter ending on or prior to March 31,  2023), when combined, without duplication, with amounts added to Consolidated EBITDA pursuant to  clauses (a)(xv), (a)(xvi), (a)(xx) and (b)(1) of the definition of “Consolidated EBITDA”, excluded pursuant  to clause (a) of the definition of “Consolidated Net Income” and included pursuant to Section 1.11(c), in  each case, for any Test Period shall not exceed (x) for purpose of any calculation of Consolidated EBITDA  under this Agreement, an amount equal to 20.0% of Consolidated EBITDA for such Test Period (calculated  prior to giving effect to such add-backs) and (y) for purposes of any calculation of Consolidated Cash  EBITDA under this Agreement, an amount equal to 25.0% of Consolidated Cash EBITDA for such Test  Period (calculated prior to giving effect to such add-backs),  (c) the cumulative effect of a change in accounting policy or in accounting principles,  including if reflected through a restatement or retroactive application, during such period,  





 






26  (d) Transaction Costs, including (i) payment of any severance and the amount of any other  success, change of control or similar bonuses or payments payable to any current or former employee,  director, officer or consultant of the Borrower or any of its Subsidiaries as a result of the consummation of  the Transactions without the requirement of any action on the part of the Borrower or any of its Subsidiaries,  and (ii) costs in connection with payments related to the rollover, acceleration or payout of equity interests  and stock options held by management and members of the board of the Borrower and its Subsidiaries,  including the payment of any employer taxes related to the items in this clause (d), and similar costs,  expenses or charges incurred in connection with each Specified Acquisition,  (e) the net income (loss) for such period of any Person that is an Unrestricted Subsidiary and  any Person that is not the Borrower or a Subsidiary or that is accounted for by the equity method of  accounting, except to the extent of the amount of dividends or distributions or other similar payments that  are actually paid in cash (or to the extent converted into cash) by such Person to the Borrower or any  Restricted Subsidiary during such period,  (f) any fees and expenses (including any transaction or retention bonus or similar payment)  incurred during such period, or any amortization thereof for such period, in connection with any acquisition,  non-recurring costs to acquire equipment to the extent not capitalized in accordance with GAAP,  Investment, recapitalization, asset disposition, non-competition agreement, issuance or repayment of debt,  issuance of equity securities (including any IPO of any Parent Entity), refinancing transaction or  amendment or other modification of or waiver or consent or forbearance or restructuring relating to any  debt instrument (in each case, including the Transaction Costs and any such transaction consummated prior  to the Effective Date and any such transaction undertaken but not completed and/or successful) and any  charges or non-recurring merger costs incurred during such period as a result of any such transaction, in  each case whether or not successful or completed (including, for the avoidance of doubt, the effects of  expensing all transaction-related expenses in accordance with FASB Accounting Standards Codification  805 and gains or losses associated with FASB Accounting Standards Codification 460),  (g) any income (loss) for such period attributable to the early extinguishment of Indebtedness,  hedging agreements or other derivative instruments,  (h) accruals and reserves that are established or adjusted in accordance with GAAP (including  any adjustment of estimated payouts on existing earnouts, inventory, property and equipment, leases, rights  fee arrangements, software, goodwill, intangible assets, in-process research and development, deferred  revenue, advanced billings and debt line items thereof) resulting from the application of recapitalization  accounting or the acquisition method of accounting, as the case may be, in relation to the Transactions or  any consummated acquisition (or the amortization or write-off of any amounts thereof) or changes as a  result of the adoption or modification of accounting policies during such period or inventory valuation  policy methods (including changes in capitalization or variances) or other inventory adjustments (including  any non-cash increase in expense as a result of last-in-first-out and/or first-in-last-out methods of  accounting),  (i) all Non-Cash Compensation Expenses,  (j) any income (loss) attributable to deferred compensation plans or trusts, any employment  benefit scheme or any similar equity plan or agreement,  (k) any income (loss) from investments recorded using the equity method of accounting (but  including any cash dividends or distributions actually received by the Borrower or any Restricted  Subsidiary in respect of such investment),  





 






27  (l) 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),  (m) any non-cash gain (loss) attributable to the mark to market movement in the valuation of  hedging obligations or other derivative instruments pursuant to FASB Accounting Standards Codification  815-Derivatives and Hedging or mark to market movement of other financial instruments pursuant to FASB  Accounting Standards Codification 825-Financial Instruments; provided that any cash payments or receipts  relating to transactions realized in a given period shall be taken into account in such period,  (n) any non-cash gain (loss) related to currency remeasurements of Indebtedness (including  the net loss or gain resulting from hedging agreements for currency exchange risk and revaluations of  intercompany balances or any other currency-related risk), unrealized or realized net foreign currency  translation or transaction gains or losses impacting net income,  (o) any non-cash expenses, accruals or reserves related to adjustments to historical tax  exposures (provided, in each case, that the cash payment in respect thereof in such future period shall be  subtracted from Consolidated Net Income for the period in which such cash payment was made),  (p) any impairment charge or asset write-off or write-down related to intangible assets  (including goodwill), long-lived assets, and investments in debt and equity securities, in each case,  including as a result of a Change in Law;  (q) the effects of purchase accounting, fair value accounting or recapitalization accounting  adjustments (including the effects of such adjustments pushed down to the referent Person and its Restricted  Subsidiaries) resulting from the application of purchase accounting, fair value accounting or recapitalization  accounting in relation to the Transactions or any Acquisition Transaction consummated before or after the  Effective Date, and the amortization, write-down or write-off of any amounts thereof, will be excluded; and  (r) the amount of any expense required to be recorded as compensation expense related to  contingent transaction consideration and the employer portion of any payroll taxes associated therewith.  There shall be included in Consolidated Net Income, without duplication, the amount of any cash  tax benefits related to the tax amortization of intangible assets in such period.  In addition, to the extent not  already included in Consolidated Net Income, Consolidated Net Income shall include the amount of  proceeds received or, so long as the Borrower has made a determination that there exists reasonable  evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the  extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable  event (it being understood that to the extent such proceeds are not actually received within such 365 day  period, such proceeds shall be deducted in calculating Consolidated Net Income for such period), due from  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.   “Consolidated Total Assets” means, as at any date of determination, the amount that would be set  forth opposite the caption “total assets” (or any like caption) on the most recent consolidated balance sheet  of the Borrower and the Restricted Subsidiaries in accordance with GAAP (excluding, for the avoidance of  doubt, amounts attributable to Unrestricted Subsidiaries).  Prior to the delivery of the financial statements  pursuant to Section 5.01(a) and Section 5.01(b), Consolidated Total Assets shall be determined by reference  to the Pro Forma Financial Statements.  





 






28  “Consolidated Total Debt” means, as of any date of determination, the outstanding principal  amount of all third party indebtedness for borrowed money (including purchase money indebtedness and,  if not paid when due and payable, earn-out obligations or similar obligations), unreimbursed drawings under  letters of credit to the extent not reimbursed within one Business Day following the drawing thereof (or  such later time as may be permitted by the documentation governing the issuance of such letter of credit),  Financing Lease Obligations and third party Indebtedness obligations evidenced by bonds, debentures,  notes or similar instruments, in each case of the Borrower and the Restricted Subsidiaries on such date, on  a consolidated basis and determined in accordance with GAAP (but without giving effect to any election to  value any such Indebtedness at “fair value”, as described in clause (a) of the definition of “GAAP”, or any  other accounting principle that results in any such Indebtedness (other than zero coupon Indebtedness)  being reflected as an amount below the stated principal amount thereof and excluding, in any event, the  effects of any discounting of Indebtedness resulting from the application of acquisition method accounting  in connection with any Permitted Acquisition or other Investment); provided that Permitted Receivables  Financings shall not constitute Indebtedness of the type included in the definition of Consolidated Total  Debt.  “Consolidated Total Net Debt” means, as of any date of determination, Consolidated Total Debt as  of such date, minus an amount (which shall not be less than zero and not to exceed $25,000,000) of the  aggregate amount of unrestricted cash and Cash Equivalents owned by the Borrower or any Restricted  Subsidiary and held in deposit accounts or securities accounts that are subject to Account Control  Agreements granting the Collateral Agent a first priority perfected lien, as reflected on a balance sheet  prepared as of such date on a consolidated basis in accordance with GAAP but without giving pro forma effect  to the receipt of the proceeds of any Indebtedness that is incurred on such date.  “Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts (other  than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption  “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and the  Restricted Subsidiaries at such date, excluding the current portion of current and deferred income taxes  over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption  “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and the  Restricted Subsidiaries on such date, including (for purposes of both clauses (a) and (b)) current and long- term deferred revenue but excluding (for purposes of both clauses (a) and (b) above, as applicable), without  duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans and  obligations under the Revolving Credit Facility, any Replacement Revolving Facility, Other Revolving  Loans or any other revolving credit facility that is effective in reliance on Section 6.01(a)(xxiii), to the  extent otherwise included therein, (iii) the current portion of interest, (iv) the current portion of current and  deferred income taxes, (v) any other liabilities that are not Indebtedness and will not be settled in cash or  Cash Equivalents during the next succeeding twelve month period after such date, (vi) the effects from  applying recapitalization or purchase accounting, (vii) any earn out obligations and (viii) any asset or  liability in respect of net obligations of such Person in respect of Swap Agreements entered into in the  ordinary course of business; provided that, for purposes of calculating Excess Cash Flow, increases or  decreases in working capital (A) arising from acquisitions or dispositions by the Borrower and the  Restricted Subsidiaries shall be measured from the date on which such acquisition or disposition occurred  until the first anniversary of such acquisition or disposition with respect to the Person subject to such  acquisition or disposition and (B) shall exclude (I) the impact of non-cash adjustments contemplated in the  Excess Cash Flow calculation, (II) the impact of adjusting items in the definition of “Consolidated Net  Income” and (III) any changes in current assets or current liabilities as a result of (x) the effect of  fluctuations in the amount of accrued or contingent obligations, assets or liabilities under hedging  agreements or other derivative obligations, (y) any reclassification in accordance with GAAP of assets or  liabilities, as applicable, between current and noncurrent or (z) the effects of acquisition method accounting.  





 






29  “Contract Asset Balance Coverage Ratio” means, on any date of determination, the ratio of (a) the  Contract Asset Balance as of the last day of the Test Period most recently ended on or prior to such date of  determination to (b) Consolidated Total Net Debt as of the last day of such Test Period.  “Contract Asset Balance” means, as of the date of determination and on a consolidated basis, the  aggregate value of cash payments due to, but not yet received by, the Borrower and its Restricted  Subsidiaries (including any Receivables Subsidiary) in connection with all policies sold on behalf of  insurance carriers, including but not limited to, all current and future cash flows associated with first year  and renewal commissions, net of any commissions due to external producers in respect of such policies.  “Contract Consideration” has the meaning assigned to such term in the definition of “Excess Cash  Flow.”  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction  of the management or policies, or the dismissal or appointment of the management, of a Person, whether  through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have  meanings correlative thereto.  “Controlled Account” has the meaning assigned to such term in clause (e) of the definition of  “Collateral and Guarantee Requirement.”  “Converted Restricted Subsidiary” has the meaning assigned to such term in the definition of  “Consolidated EBITDA.”  “Converted Unrestricted Subsidiary” has the meaning assigned to such term in the definition of  “Consolidated EBITDA.”  “Corrective Loan Modification Agreement” has the meaning assigned to such term in Section  2.24(f).  “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R.  § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.  § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §  382.2(b).  “Covered Party” has the meaning assigned to such term in Section 9.22.  “Credit Agreement Refinancing Indebtedness” means Permitted Equal Priority Refinancing Debt,  Permitted Junior Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, in each case, that is  issued, incurred or otherwise obtained (including by means of the extension or renewal of existing  Indebtedness) to Refinance, in whole or part, existing Initial Term Loans, 2020 Incremental Term Loans,  2021 Incremental Term Loans, 2021-2 Incremental Term Loans, any other Incremental Term Loans, Other  Term Loans, Replacement Revolving Loans (or unused Replacement Revolving Commitments), Revolving  Loans (or unused Revolving Commitments), Other Revolving Loans (or unused Other Revolving  Commitments) or any then-existing Credit Agreement Refinancing Indebtedness (“Refinanced Credit  





 






30  Agreement Debt”); provided that such Indebtedness: (a) except with respect to Indebtedness constituting a  customary bridge facility, so long as the long-term Indebtedness into which any such customary bridge  facility is to be converted or exchanged satisfies the requirements of this clause (a) and such conversion or  exchange is subject only to conditions customary for similar conversions or exchanges or Indebtedness  subject to Customary Escrow Provisions, does not mature earlier than and, except in the case of the  Revolving Commitments, does not have a Weighted Average Life to Maturity shorter than, the earlier of  the maturity of such Refinanced Credit Agreement Debt and the Latest Maturity Date, (b) does not have  mandatory prepayment or redemption provisions (other than customary asset sale proceeds events,  insurance, eminent domain and condemnation proceeds events, change of control offers, events of default  or, in the case of loans, excess cash flow sweeps), that could result in the prepayment or redemption thereof  prior to the earlier of the maturity date of the Refinanced Credit Agreement Debt and the Latest Maturity  Date; provided that the foregoing requirements of this clause (b) shall not apply to the extent such  Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which any  such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (b)  and such conversion or exchange is subject only to conditions customary for similar conversions or  exchanges or if such Indebtedness is subject to Customary Escrow Provisions; provided, further that, any  such Indebtedness that is secured on an equal priority basis with the Liens securing the Secured Obligations  may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than pro rata,  but not on a greater than pro rata basis with the Loans), (c) with respect to Refinanced Credit Agreement  Debt consisting of Revolving Loans (or unused Revolving Commitments), Replacement Revolving  Commitments or Other Revolving Loans (or unused Other Revolving Commitments), will not require  scheduled amortization or mandatory commitment reductions prior to the earlier of the Latest Maturity Date  and the maturity of such Refinanced Credit Agreement Debt, (d) except as otherwise provided herein or  such amount is otherwise permitted under Section 6.01, is in an original aggregate principal amount not  greater than the aggregate principal amount of (or the accreted value, if applicable, shall not be greater than  that of) the Refinanced Credit Agreement Debt (plus any premium (including tender premiums, if any),  accrued interest and fees and expenses incurred in connection with such exchange, extension, renewal,  replacement or refinancing (including defeasance costs, underwriting discounts, upfront fees or similar fees,  original issue discount or initial yield payments) plus an amount equal to existing unutilized commitments  and letters of credit undrawn), (e) is not incurred or guaranteed by any entity that is not a Loan Party, (f) in  the case of any secured Indebtedness (i) is not secured by any assets not securing the Secured Obligations  and (ii) is secured on an equal priority basis with, or on a junior basis to, the Liens securing the Secured  Obligations and is subject to the relevant Intercreditor Agreements, (g) has terms and conditions (excluding  pricing, interest rate margins, rate floors, discounts, fees, premiums and, subject to clauses (a) and  (b) above, prepayment or redemption provisions, which shall be determined by the Borrower), that are not  materially more restrictive on Holdings, the Borrower and its Restricted Subsidiaries than those applicable  to the Refinanced Credit Agreement Debt, when taken as a whole (it being understood that, to the extent  that any covenant or other provision is added for the benefit of any such Indebtedness, no consent shall be  required by the Administrative Agent or any of the Lenders if such covenant or other provision is either  (i) also added for the benefit of all Credit Facilities hereunder not constituting Refinanced Credit Agreement  Debt or (ii) only applicable to periods after the Latest Maturity Date at the time of such refinancing  (provided, however, that, if (x) the documentation governing such Indebtedness that includes a financial  maintenance covenant consists of a revolving credit facility (whether or not the documentation therefor  includes any other facilities) and (y) such financial maintenance covenant is a “springing” financial  maintenance covenant for the benefit of such revolving credit facility or a covenant only applicable to, or  for the benefit of, a revolving credit facility, then such Indebtedness or commitments shall not be deemed  “more restrictive” with respect to any Term Facility solely as a result of such financial maintenance  covenant benefiting only such revolving credit facilities)); provided that a certificate of a Responsible  Officer of the Borrower delivered to the Administrative Agent and the Required Lenders at least five  Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description  of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto,  





 






31  stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing  requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement  unless the Administrative Agent or the Required Lenders notify the Borrower within such five Business  Day period that it disagrees with such determination (including a reasonable description of the basis upon  which it disagrees) and (h) if subordinate in right of payment to the Credit Facilities hereunder, subject to  a Subordination Agreement or subordination provisions reasonably acceptable to the Administrative Agent,  the Required Lenders and the Borrower.  “Credit Facilities” means the Revolving Credit Facility and the Term Facility.  “Cure Amount” has the meaning assigned to such term in Section 7.02.  “Cure Right” has the meaning assigned to such term in Section 7.02.  “Customary Escrow Provisions” means customary prepayment or redemption terms relating to  Escrowed Proceeds under escrow arrangements.  “Data Protection Requirements” means all Requirements of Law, to the extent applicable to the  items and services provided by the Borrower and each Restricted Subsidiary, relating to the privacy and  security of information technology assets and equipment, computers, systems, networks, hardware,  software, websites, applications, and databases and personal, personally identifiable, sensitive, confidential  or regulated data and, in each case, to the protection thereof from unauthorized use, access,  misappropriation or modification.  “Default” means any event or condition that constitutes an Event of Default or that upon notice,  lapse of time or both would, unless cured or waived, become an Event of Default.  “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 12 C.F.R §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means any Lender that has (a) failed to fund any portion of its Loans or  participations in Letters of Credit or Swingline Loans within two Business Days of the date on which such  funding is required hereunder, (b) notified the Borrower, the Administrative Agent, any Issuing Bank, the  Swingline Lender or any 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 (or provided any written notification to  any Person) to the effect that it does not intend to comply with its funding obligations under this Agreement  or under other agreements in which it commits to extend credit, (c) failed, within one Business Day after  request by the Administrative Agent (whether acting on its own behalf or at the reasonable request of the  Borrower (it being understood that the Administrative Agent shall comply with any such reasonable  request)), to confirm that it will comply with the terms of this Agreement relating to its obligations to fund  prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans,  (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required  to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith  dispute or subsequently cured, (e) (i) become or is insolvent or has a parent company that has become or is  insolvent or (ii) become or has a parent company that has become the subject of a bankruptcy or insolvency  proceeding or any action or proceeding of the type described in Section 7.01(h) or Section 7.01(i), 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 or has a parent company that has become the subject of a bankruptcy or insolvency proceeding,  or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar  





 






32  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 or (f) becomes the subject of a Bail-In Action.  Any determination by the Administrative  Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (f) above shall be  conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender  (subject to Section 2.22(b)) upon delivery of written notice of such determination to the Borrower, any  Issuing Bank, the Swingline Lender and each Lender.  “Defaulting Lender Fronting Exposure” means, at any time there is a Revolving Lender that is a  Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage  of the outstanding Letter of Credit obligations other than Letter of Credit obligations as to which such  Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or cash  collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such  Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as to which  such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or cash  collateralized in accordance with the terms hereof.  “Delaware LLC” means any limited liability company organized or formed under the laws of the  State of Delaware.  “Delaware LLC Division” means the statutory division of any Delaware LLC into two or more  Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.   “Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration  received by the Borrower or any Restricted Subsidiary in connection with a Disposition pursuant to  Section 6.05(j) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a  Responsible Officer of the Borrower, setting forth the basis of such valuation (which amount will be  reduced by the Fair Market Value of the portion of the non-cash consideration converted to cash within 180  days following the consummation of the applicable Disposition).  “Disposed EBITDA” means, with respect to any Sold Entity or Business or Converted Unrestricted  Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or  Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower and the  Restricted Subsidiaries in the definition of “Consolidated EBITDA” (and in the component financial  definitions used therein) were references to such Sold Entity or Business and its subsidiaries or to such  Converted Unrestricted Subsidiary and its subsidiaries), all as determined on a consolidated basis for such  Sold Entity or Business or Converted Unrestricted Subsidiary.  “Disposition” has the meaning assigned to such term in Section 6.05.  “Disposition/Casualty Prepayment Event” has the meaning assigned to such term in the definition  of “Prepayment Event”.  “Disposition Percentage” has the meaning assigned to such term in Section 2.11(c).  “Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such Person  that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable,  either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:  





 






33  (a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person  that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity  Interests), whether pursuant to a sinking fund obligation or otherwise;  (b) is convertible or exchangeable, either mandatorily or at the option of the holder thereof, for  Indebtedness or Equity Interests (other than solely for Equity Interests in such Person that do not constitute  Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests); or  (c) is redeemable (other than solely for Equity Interests in such Person that do not constitute  Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) or is required to  be repurchased by such Person or any of its Affiliates, in whole or in part, at the option of the holder thereof;  in each case, on or prior to the date 91 days after the Latest Maturity Date (determined as of the date of  issuance thereof or, in the case of any such Equity Interests outstanding on the Effective Date, the Effective  Date); provided, however, that (i) any Equity Interest in any Person that would not constitute a Disqualified  Equity Interest 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,” a “change of control”, eminent domain  event, condemnation event, or similar event shall not constitute a Disqualified Equity Interest if any such  requirement becomes operative only after repayment in full of all the Loans and all other Loan Document  Obligations that are accrued and payable and the termination of the Commitments, (ii) if any Equity Interest  in any Person is issued pursuant to any plan for the benefit of directors, officers, employees, members of  management, managers or consultants, of Holdings (or any other Parent Entity), the Borrower or any other  Subsidiary or by any such plan to such employees, such Equity Interest shall not constitute a Disqualified  Equity Interest solely because it may be required to be repurchased by Holdings (or any other Parent Entity),  the Borrower or any other Subsidiary in order to satisfy applicable statutory or regulatory obligations of  such Person and (iii) no Equity Interest held by any future, present or former employee, director, officer,  manager, member of management, consultant or independent contractor (or their respective affiliates or  Immediate Family Members) of the Borrower (or any Parent Entity or any Subsidiary) shall be considered  a Disqualified Equity Interest solely because such stock is redeemable or subject to repurchase pursuant to  any customary stock option, employee stock award or similar agreement that may be in effect from time to  time.  “Disqualified Lenders” means:  (i) those Persons identified by Holdings or the Borrower to the Joint Bookrunners in writing on or  prior to the Signing Date;  (ii) any Company Competitor that is identified in writing (which list of Company Competitors may  be supplemented by the Borrower after the Effective Date by means of a written notice to the Administrative  Agent, but which supplementation shall not apply retroactively to disqualify any previously acquired  assignment or participation in any Loan); and  (iii) any Affiliate of any Person described in clauses (i) and (ii) above (other than any Competitor  Debt Fund Affiliate) that is (x) identified in writing to the Administrative Agent, (y) a known Affiliate of  such Person in the marketplace or (z) readily identifiable on the basis of such Affiliate’s name;  it being understood and agreed that the identification of any Person as a Disqualified Lender after the  Effective Date shall not apply to retroactively disqualify any previously acquired assignment or  participation interest in any Loan.  “Disqualified Person” has the meaning assigned to such term in Section 9.04(h)(ii).  





 






34  “Divided Delaware LLC” means any Delaware LLC which has been formed upon the  consummation of a Delaware LLC Division.  “Dollars” or “$” refers to lawful money of the United States of America.  “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars,  such amount, and (b) with respect to any amount denominated in any other currency, the equivalent amount  thereof in Dollars as determined in accordance with Section 1.05 hereof.  “Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.  “ECF Percentage” means, with respect to the prepayment required by Section 2.11(d) with respect  to any Excess Cash Flow Period, (a) 50%, if the Total Net Cash Leverage Ratio (after giving effect to the  Permitted ECF Recalculation Considerations) as of the end of such Excess Cash Flow Period is greater than  4.50:1.00, (b) 25%, if the Total Net Cash Leverage Ratio (after giving effect to the Permitted ECF  Recalculation Considerations) as of the end of such Excess Cash Flow Period is greater than 4.00:1.00 but  less than or equal to 4.50:1.00 and (c) 0%, if the Total Net Cash Leverage Ratio (after giving effect to the  Permitted ECF Recalculation Considerations) as of the end of such Excess Cash Flow Period is equal to or  less than 4.00:1.00.  “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 Date” means the date on which the conditions specified in Section 4.01 are satisfied (or  waived in accordance with Section 9.02), which date is September 13, 2019.  “Effective Date Refinancing” means, collectively, the repayment, repurchase or other discharge of  the Existing Credit Agreement Indebtedness, the termination of all commitments to extend credit thereunder  and the termination and/or release of any security interests and guarantees in connection therewith.  “Effective Yield” means, as of any date of determination, the effective yield paid by the Borrower  on any Indebtedness as determined by the Borrower and the Administrative Agent in a manner consistent  with generally accepted financial practices, taking into account the applicable interest rate margins, any  interest rate “floors” (the effect of which floors shall be determined in a manner set forth in the proviso  below and assuming that, if interest on such Indebtedness is calculated on the basis of a floating rate, the  “Adjusted LIBOR Rate” or similar component of such formula is included in the calculation of Effective  Yield) or similar devices and all fees, including upfront or similar fees or original issue discount (amortized  over the shorter of (x) the remaining weighted average life to maturity of such Indebtedness and (y) the four  years following the date of incurrence thereof, and, if applicable, assuming any replacement revolving credit  commitments were fully drawn) payable generally by the Borrower to Lenders or other institutions  





 






35  providing such Indebtedness, but excluding any commitment fees, arrangement fees, structuring fees,  underwriting fees, closing payments or other similar fees payable to any arrangers and/or bookrunners (or  their respective Affiliates) in connection therewith that are not generally shared with all relevant lenders or  holders (in their capacities as such) and, if applicable, ticking fees accruing prior to the funding of such  Indebtedness and customary consent or amendment fees for an amendment paid generally to consenting  Lenders (and regardless of whether any such fees are paid to, or shared in whole or in part with, any Lender);  provided that, with respect to any Indebtedness that includes a “floor”, (a) to the extent that the Adjusted  LIBOR Rate 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 (b) to the extent that the Adjusted LIBOR Rate 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 (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d)  any other Person, other than, in each case, (i) a natural person, (ii) a Defaulting Lender, (iii) a Disqualified  Lender (to the extent that the list of Disqualified Lenders has been received by such assignee upon its  request), or (iv) Holdings, the Borrower or any of their Affiliates.  “EMU Legislation” means the legislative measures of the European Council for the introduction  of, changeover to or operation of a single or unified European currency.  “Environmental Laws” means applicable common law and applicable Requirements of Law, and  all applicable injunctions or legally binding agreements issued, promulgated or entered into by or with any  Governmental Authority, in each instance relating to the protection of the environment, including with  respect to the preservation or reclamation of natural resources or the generation, use, handling  transportation, storage, treatment or disposal (including any Release or threatened Release) of any  Hazardous Material, or, to the extent relating to exposure to Hazardous Materials, the protection of human  health or safety.  “Environmental Liability” means any liability, obligation, loss, claim, action, order or cost,  contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of  environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties  and indemnities), of Holdings, the Borrower or any other Subsidiary directly or indirectly resulting from or  based upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval  issued thereunder, (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 or (e) any legally binding contract, agreement or other consensual arrangement  pursuant to which liability is assumed or imposed with respect to any of the foregoing.  “Equal Priority Intercreditor Agreement” has the meaning assigned to such term in the definition  of “Intercreditor Agreement.”  “Equity Capitalization” has the meaning assigned to such term in the definition of “Equity  Contribution”.  “Equity Contribution” means the direct or indirect cash equity contributions made by the Sponsor  and certain other Investors (including the Management Investors) arranged by or designated by the Sponsor  directly or indirectly to the Parent and to Midco, the net proceeds of which will be further contributed by  Parent and Midco, directly or indirectly, as cash equity to Merger Sub in connection with the consummation  of the Merger (provided that any such contributions in a form other than common Equity Interests shall be  reasonably acceptable to the Joint Lead Arrangers), in an aggregate amount equal to, when combined with  





 






36  the Fair Market Value of any Equity Interests of any of the Rollover Investors rolled over or invested in  connection with the Transactions (the foregoing, the “Equity Capitalization”) at least 70.0% of the sum of  (1) the aggregate amount of Credit Facilities funded on the Effective Date (but excluding the gross proceeds  of any Loans borrowed on the Effective Date to fund working capital needs and certain original issue  discount or upfront fees) plus (2) the Equity Capitalization of the Borrower and its Subsidiaries on the  Effective Date after giving effect to the Transactions; provided that the Sponsor, after giving effect to the  Transactions, shall directly or indirectly control the voting of the capital stock having at least a majority of  the ordinary voting power for the election of the Board of Directors of the Borrower on the Effective Date  after giving effect to the Transactions.  “Equityholding Vehicle” means any Parent Entity and any equityholder thereof through which  current, former or future officers, directors, employees, managers or consultants of Holdings or the  Borrower or any of their subsidiaries or Parent Entity hold Equity Interests of such Parent Entity.  “Equity Interests” means shares of capital stock, partnership interests, membership interests in a  limited liability company, beneficial interests in a trust or other equity ownership interests in, or interests  in a Person.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to  time.  “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with  any Loan Party, is treated as a single employer under Section 414(b) or Section 414(c) of the Code or, solely  for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under  Sections 414(b), (c), (m) and (o) of the Code.  “ERISA Event” means (a) any “reportable event,” as defined in Section 4043(c) of ERISA or the  regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period  is waived); (b) any failure by a Loan Party or any ERISA Affiliate to satisfy the minimum funding standards  (within the meaning of Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA)  applicable to any Plan, whether or not waived; (c) the filing pursuant to Section 412 of the Code or  Section 302 of ERISA of an application for a waiver of the minimum funding standard with respect to any  Plan; (d) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in  Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) the incurrence by a Loan Party or any  ERISA Affiliate of any liability under Title IV of ERISA (other than premiums due and not delinquent  under Section 4007 of ERISA) with respect to the termination of any Plan; (f) the receipt by a Loan Party  or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to  terminate any Plan or Plans under Section 4041 of ERISA or to appoint a trustee to administer any Plan  under Section 4042 of ERISA; (g) the incurrence by a Loan Party or any ERISA Affiliate of any liability  with respect to the withdrawal from any Plan subject to Section 4063 of ERISA during a plan year in which  it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations  that is treated as such a withdrawal under Section 4062(e) of ERISA, or a complete or partial withdrawal  (within the meanings of Section 4203 and Section 4205 of ERISA, respectively) from a Multiemployer  Plan; (h) the occurrence of a Foreign Benefit Plan Event; (i) the receipt by a Loan Party or any ERISA  Affiliate of any notice, or the receipt by any Multiemployer Plan from a Loan Party or any ERISA Affiliate  of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer  Plan is, or is expected to be, “insolvent,” within the meaning of Section 4245 of ERISA or in “endangered  or critical status,” within the meaning of Section 305 of ERISA; (j) the occurrence of an act or omission  which could reasonably be expected to give rise to the imposition on the Borrower, any of its Subsidiaries  or any of their respective ERISA Affiliates of fines, penalties, excise taxes or related charges under Chapter  43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any  





 






37  Plan; or (k) the incurrence of liability or the imposition of a Lien pursuant to Section 436 or 430(k) of the  Code or pursuant to ERISA with respect to any Plan, other than for PBGC premiums due but not delinquent.   “Escrowed Proceeds” means the proceeds from the offering of any debt securities or other  Indebtedness paid into an escrow account with an independent escrow agent on the date of the applicable  offering or incurrence pursuant to escrow arrangements that permit the release of amounts on deposit in  such escrow account upon satisfaction of certain conditions or the occurrence of certain events.  The term  “Escrowed Proceeds” shall include any interest earned on the amounts held in escrow.  “Euros” and “€” mean the single currency of the European Union as constituted by the Treaty on  European Union and as referred to in the EMU Legislation.  “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.  “Eurocurrency” means, in respect of any Loan or Borrowing, a LIBOR Loan or Borrowing.  “Event of Default” has the meaning assigned to such term in Section 7.01.  “Excess Cash Flow” means, for any period, an amount (if positive) equal to the excess of:  (a) the sum (in each case, for the Borrower and the Restricted Subsidiaries on a consolidated  basis), without duplication, of:  (i) Consolidated Net Income for such period,  (ii) an amount equal to the amount of 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) (x) decreases in Consolidated Working Capital, long-term receivables and  long-term prepaid assets, (y) increases in long-term deferred revenue for such period and  (z) without duplication of amounts in the foregoing clause (x), decreases in the Contract  Asset Balance on the last day of such period as compared to the first day of such period,  (iv) an amount equal to the aggregate net loss on Dispositions by the Borrower  and the 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,  and  (v) extraordinary cash gains during such period; less:  (b) the sum (in each case, for the Borrower and the Restricted Subsidiaries on a consolidated  basis), without duplication (including in any subsequent fiscal years), of:  (i) 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  





 






38  in clauses (a) through (q) of the definition of “Consolidated Net Income”, except to the  extent such cash charges were financed with long-term Indebtedness (other than revolving  Indebtedness),  (ii) without duplication of amounts deducted pursuant to clause (x) below in  prior fiscal years, the amount of Capital Expenditures and Capitalized Software  Expenditures made or accrued in cash during such period or, at the option of the Borrower,  made prior to the date the Borrower is required to make a payment of Excess Cash Flow in  respect of such period, except to the extent that such Capital Expenditures were financed  with long-term Indebtedness (other than revolving Indebtedness),  (iii)  (x) the aggregate amount of all principal payments of Indebtedness during  such period, including (A) the principal payments of Term Loans under this Agreement  made pursuant to Section 2.10(a), (B) the principal component of payments in respect of  Financing Lease Obligations and (C) the amount of any mandatory prepayment of Loans,  Incremental Equivalent Debt and Credit Agreement Refinancing Indebtedness, in each  case, to the extent required due to a Disposition that resulted in an increase to Consolidated  Net Income and not in excess of the amount of such increase but excluding (I) all  prepayments of revolving loans and swingline loans (including the Revolving Loans and  Swingline Loans) made during such period (other than in respect of any revolving credit  facility to the extent there is not an equivalent permanent reduction in commitments  thereunder), (II) all principal prepayments of Indebtedness (other than the Loans) to the  extent reducing the required prepayment of Term Loans in respect of such period pursuant  to the first sentence of Section 2.11(d) and (III) all such principal payments of Indebtedness  to the extent financed with long-term Indebtedness (other than revolving Indebtedness) and  (y) the aggregate amount of any premium, make-whole or penalty payments actually paid  in cash by the Borrower and the Restricted Subsidiaries during such period that are required  to be made in connection with any prepayment of Indebtedness referred to in clause (x), to  the extent not financed with long-term Indebtedness (other than revolving Indebtedness),  (iv) an amount equal to the aggregate net non-cash gain on Dispositions by the  Borrower and the Restricted Subsidiaries during such period (other than Dispositions in  the ordinary course of business) to the extent included in arriving at such Consolidated Net  Income,  (v) (x) increases in Consolidated Working Capital, long-term receivables and  long-term prepaid assets, (y) decreases in long-term deferred revenue for such period and  (z) without duplication of amounts in the foregoing clause (x), increases in the Contract  Asset Balance on the last day of such period as compared to the first day of such period,  (vi) cash payments by the Borrower and the Restricted Subsidiaries during  such period in respect of liabilities of the Borrower and the Restricted Subsidiaries  (including any earn-outs) other than Indebtedness, to the extent such payments are  not expensed during such period or are not deducted in calculating Consolidated  Net Income and were not financed with long-term Indebtedness (other than  revolving Indebtedness),  (vii) without duplication of amounts deducted pursuant to clause (x) below in  prior fiscal years, the amount of Investments (other than (A) intercompany  Investments, (B) Investments in Cash Equivalents and (C) Investments made using  the Available Amount and the Available Equity Amount (other than clause (a)  





 






39  thereof)) and acquisitions not prohibited by this Agreement made in cash during  such period or, at the option of the Borrower, made prior to the date the Borrower  is required to make a payment of Excess Cash Flow in respect of such period, to  the extent that such Investments or acquisitions and were not financed with long- term Indebtedness (other than revolving Indebtedness),  (viii) the amount of Restricted Payments (other than Restricted Payments to the  Borrower or any Restricted Subsidiary) permitted by clause (i) (limited to the  amount distributed for minority interests to any Person that is not a Restricted  Subsidiary), (iii) (other than to the Borrower or any Restricted Subsidiary), (vi),  (vii), (viii) (other than Restricted Payments made using the Available Amount and  the Available Equity Amount (other than clause (a) thereof)), (x), (xi), (xii), (xiii),  (xiv) and (xvi) (other than clause (A)(i) of clause (xvi)) of Section 6.08(a) that are  paid in cash during such period or, at the option of the Borrower, made prior to the  date the Borrower is required to make a payment of Excess Cash Flow in respect  of such period, and not prohibited by this Agreement, to the extent such Restricted  Payments were not financed with long-term Indebtedness (other than revolving  Indebtedness),  (ix) the aggregate amount of expenditures actually made by the Borrower and  the Restricted Subsidiaries in cash during such period (including expenditures for the  payment of financing fees) to the extent that such expenditures are not expensed during  such period or are not deducted (and not added back) in calculating Consolidated Net  Income, to the extent that such expenditures were not financed with long-term Indebtedness  (other than revolving Indebtedness),  (x) without duplication of amounts deducted from Excess Cash Flow in prior  periods, (1) the aggregate consideration required to be paid in cash by the Borrower  or any Restricted Subsidiary pursuant to binding contracts, commitments, letters  of intent or purchase orders (the “Contract Consideration”), in each case, entered  into prior to or during such period and (2) the aggregate amount of cash that is  reasonably expected to be paid in respect of planned cash expenditures by the  Borrower or any Restricted Subsidiary (the “Planned Expenditures”), in the case  of each of clauses (1) and (2), relating to Permitted Acquisitions, other Investments  (other than intercompany Investments and Investments in Cash Equivalents),  Capitalized Software Expenditures or Capital Expenditures (including other  purchases of intellectual property) to be consummated or made during a  subsequent period (and in the case of Planned Expenditures, during the  immediately succeeding four fiscal quarters of the Borrower); provided that, in  each case, to the extent the aggregate amount of internally generated cash flow of  the Borrower or the Restricted Subsidiaries actually utilized to finance such  Permitted Acquisitions, Investments, Capital Expenditures or Capitalized  Software Expenditures during such subsequent period is less than the Contract  Consideration or Planned Expenditures, as applicable, the amount of such shortfall  shall be added to the calculation of Excess Cash Flow at the end of the succeeding  fiscal year,  (xi) the amount of taxes (including penalties and interest or tax reserves) paid  in cash and/or tax reserves set aside, payable, or reasonably estimated to be payable  (without duplication) in such period to the extent they exceed the amount of tax expense  deducted in determining Consolidated Net Income for such period,  





 






40  (xii) the amount of cash payments made in respect of pensions and other  postemployment benefits in such period to the extent not deducted in arriving at such  Consolidated Net Income,  (xiii) to the extent not deducted in arriving at Consolidated Net Income, cash  fees, expenses and purchase price adjustments incurred in such period in connection with  the Transactions or any permitted Investment, issuance of Equity Interests or debt  incurrence (whether or not consummated) and any Restricted Payment made in such period  to pay any of the foregoing incurred by Holdings or any Parent Entity,  (xiv) reimbursable and insured expenses in such period to the extent such  reimbursement has not yet been received and to the extent not deducted in arriving at such  Consolidated Net Income, and  (xv) extraordinary cash losses during such period and to the extent not deducted  in arriving at such Consolidated Net Income.  “Excess Cash Flow Period” has the meaning assigned to such term in Section 2.11(d).  “Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time  to time.  “Exchange Rate” means on any day, for purposes of determining the Dollar Equivalent of any  currency other than Dollars the rate at which such other currency may be exchanged into Dollars at the time  of determination on such day as set forth on the Bloomberg screen page for such currency.  In the event  that such rate does not appear on any Bloomberg screen page, the Exchange Rate shall be determined by  reference to such other publicly available service for displaying exchange rates as may be agreed upon by  the Administrative Agent and the Borrower or, in the absence of such an agreement, such Exchange Rate  shall instead be the arithmetic average of the Exchange Rates of exchange quoted to the Administrative  Agent for such currency, at or about such time as the Administrative Agent shall elect after determining  that such rates shall be the basis for determining the Exchange Rate, on such date for the purchase of Dollars  for delivery two Business Days later; provided that, if at the time of any such determination, for any reason,  no such Exchange Rate is being quoted, the Administrative Agent may use any reasonable method it deems  appropriate to determine such rate, and such determination shall be conclusive absent manifest error.  “Excluded Accounts” means any deposit accounts, commodities account and securities accounts  (each as defined in the UCC) (i) that are held by any Loan Party and are swept at least every two Business  Days (or more frequently) to a Controlled Account, (ii) the balance of which consists exclusively of (x)  withheld income taxes and federal, state or local employment taxes, and (y) amounts required to be paid  over to an employee benefit plan, (iii) all segregated deposit accounts constituting or used for (and the  balance of which consists solely of funds set aside for the purpose of managing) disbursement, tax accounts,  payroll accounts (including payroll taxes required to be collected, remitted or withheld, including federal  and state withholding taxes), employee wages and benefits, customs, fiduciary benefits, trust, escrow or  similar purposes, (iv) that are zero balance accounts and (v) other accounts with an aggregate balance of  less than $2,500,000 at all times.  “Excluded Assets” means (a) (x) any fee owned real property other than Material Real Property,  (y) all leasehold interests in real property, (b) any governmental licenses or state or local franchises, charters  or authorizations, to the extent a security interest in any such license, franchise, charter or authorization  would be prohibited or restricted thereby (including any legally effective prohibition or restriction) after  giving effect to any applicable anti-assignment provisions of the UCC or other applicable law  





 






41  notwithstanding such prohibition, (c) any asset to the extent a pledge thereof or grant of security interest  therein is prohibited by any Requirement of Law (including any legally effective requirement to obtain the  consent of any governmental authority, except to the extent such consent has been obtained) after giving  effect to any applicable anti-assignment provisions of the UCC or other applicable law notwithstanding  such prohibition, (d) margin stock and, to the extent (i) prohibited by the terms of, creating an enforceable  right of termination in favor of any other party thereto (other than Holdings, the Borrower or any wholly- owned Restricted Subsidiary of the Borrower) or requiring the consent of one or more third parties (other  than Holdings, the Borrower or any wholly-owned Restricted Subsidiary of the Borrower) under and/or (ii)  any pledge could give rise to a “right of first refusal”, a “right of first offer” or a similar right that may be  exercised by any third party (other than Holdings, the Borrower or any wholly-owned Restricted Subsidiary  of Holdings or the Borrower) pursuant to, any applicable Organizational Documents, Joint Venture  agreement or shareholders’ agreement, Equity Interests in any Person other than the Borrower or any  Restricted Subsidiary that is a wholly-owned, Restricted Subsidiary (except any Subsidiary that becomes  non wholly-owned as the result of the transfer of any of its equity interests to any Affiliate of the Borrower),  (e) assets to the extent a security interest or grant of perfection in such assets would result in material  adverse tax consequences to the Borrower or any of their Subsidiaries or any direct or indirect Parent Entity  or other equityholder of the foregoing, as reasonably determined by the Borrower in consultation with (but  without the consent of) the Administrative Agent, (f) Foreign Intellectual Property and any intent-to-use  trademark application prior to the filing of a “Statement of Use”, “Amendment to Allege Use” or similar  filing with respect thereto, (g) any lease, license or other agreement or any property subject to a purchase  money security interest, Financing Lease Obligation or similar arrangement permitted hereunder to the  extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement  or purchase money arrangement, Financing Lease Obligation or similar arrangement or create a breach,  default or right of termination in favor of any other party thereto (other than Holdings, the Borrower or any  wholly-owned Restricted Subsidiary) after giving effect to the applicable anti-assignment provisions of the  Uniform Commercial Code of any applicable jurisdiction or other similar applicable law, other than  proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform  Commercial Code of any applicable jurisdiction or other similar applicable law notwithstanding such  prohibition, (h) in excess of 65% of the voting Equity Interests of (A) any Foreign Subsidiary or (B) any  FSHCO, (i) Excluded Accounts, (j) the Equity Interests of any (i) Immaterial Subsidiary (except to the  extent a Lien thereon cannot be perfected solely by filing a UCC financing statement), (ii) Unrestricted  Subsidiary, (iii) not-for-profit subsidiary, any Receivables Subsidiary and/or any captive insurance  company, (iv) any employee stock ownership plan or trust established by Holdings or any of its Subsidiaries  or a direct or indirect parent of Holdings (to the extent such employee stock ownership plan or trust has  been funded by Holdings or any Subsidiary or a direct or indirect parent of Holdings), (v) any Equity  Interests of any Person acquired after the Effective Date pursuant to a Permitted Acquisition or similar  Investment that are pledged to secure Indebtedness permitted to be assumed hereunder (and not incurred in  contemplation of the Effective Date or such Permitted Acquisition or similar Investment) existing at the  time of such Permitted Acquisition or similar Investment and (vi) any Equity Interests of any Person other  than a wholly-owned Restricted Subsidiary (except any Subsidiary that becomes non wholly-owned as the  result of the transfer of any of its equity interests to any Affiliate of the Borrower), (k) Vehicles, aircrafts,  aircraft engines and other assets subject to certificates of title to the extent a Lien thereon cannot be  perfected solely by filing a UCC financing statement, and/or (l) receivables, leases contracts, loans,  mortgages, royalties and related assets (or interests therein) including but not limited to inventory, bank  accounts, records and proceeds of any of the foregoing (A) sold or contributed to any Receivables  Subsidiary or (B) otherwise pledged, factored, transferred or sold in, in each case, connection with any  Permitted Receivables Financing.  Other assets shall be deemed to be “Excluded Assets” if the  Administrative Agent and the Borrower reasonably agree in writing that the cost of obtaining or perfecting  a security interest in such assets is excessive in relation to the benefit to the Lenders of the security to be  afforded thereby.  





 






42  “Excluded Subsidiary” means any of the following (except as otherwise provided in clause (b) of  the definition of “Subsidiary Loan Party”): (a) any Subsidiary that is not a wholly-owned subsidiary of  Holdings, except to the extent such Subsidiary becomes a non-wholly-owned subsidiary of Holdings as a  result of the transfer of any of its Equity Interests to an Affiliate of Holdings after the Effective Date,  (b) each Subsidiary listed on Schedule 1.01(a), (c) any Unrestricted Subsidiary, (d) each Immaterial  Subsidiary, (e) any Subsidiary that is prohibited by (i) applicable Requirements of Law or (ii) any  contractual obligation existing on the Effective Date or on the date any such Subsidiary is acquired (so long  as, in respect of any such contractual prohibition, such prohibition is not incurred in contemplation of the  Effective Date or such acquisition and only for so long as such restriction is continuing), in each case from  guaranteeing the Secured Obligations or which would require governmental (including regulatory) consent,  approval, license or authorization to provide a Guarantee (unless such consent, approval, license or  authorization has been received), (f) any Foreign Subsidiary, (g) any direct or indirect Domestic Subsidiary  of a direct or indirect Foreign Subsidiary of the Borrower, (h) any FSHCO, (i) any Subsidiary for which the  provision of a Guarantee would result in any material adverse Tax consequences to Holdings, the Borrower  or one of their respective Subsidiaries or to any Parent Entity (as reasonably determined by the Borrower  in consultation with (but without the consent of) the Administrative Agent), (j) any other Subsidiary  excused from becoming a Loan Party pursuant to clause (a) of the last paragraph of the definition of the  term “Collateral and Guarantee Requirement,” (k) each Receivables Subsidiary, (l) any not-for-profit  Subsidiaries or captive insurance companies.  “Excluded Swap Obligation” means, with respect to any Guarantor, (a) 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, as applicable, such Swap Obligation (or any Guarantee thereof) is or  becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the U.S.  Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by  virtue of (i) such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined  in the Commodity Exchange Act (determined after giving effect to any applicable keep well, support, or  other agreement for the benefit of such Guarantor and any and all Guarantees of such Guarantor’s Swap  Obligations by other Loan Parties) at the time the Guarantee of such Guarantor, or a grant by such Guarantor  of a security interest, becomes effective with respect to such Swap Obligation or (ii) in the case of a Swap  Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange  Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity  Exchange Act, at the time the Guarantee of such Guarantor of, or the grant by such Guarantor of a security  interest to secure, as applicable, such Swap Obligation or (b) any other Swap Obligation designated as an  “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan  Parties and counterparty applicable to such Swap Obligations.  If a Swap Obligation arises under a Master  Agreement governing more than one Swap, such exclusion shall apply only to the portion of such Swap  Obligation that is attributable to Swaps for which such Guarantee or security interest is or becomes excluded  in accordance with the first sentence of this definition.  “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other  recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or  under any other Loan Document, (a) Taxes imposed on (or measured by) its net income (however  denominated), branch profits Taxes and franchise Taxes, in each case imposed by (i) a jurisdiction as a  result of such recipient being organized or having its principal office located in or, in the case of any Lender,  having its applicable lending office located in, such jurisdiction or (ii) any jurisdiction as a result of any  other present or former connection between such recipient and the jurisdiction imposing such Tax (other  than a connection arising solely from such recipient having executed, delivered, or become a party to,  performed its obligations or received payments under, received or perfected a security interest under, sold  or assigned an interest in, or engaged in any other transaction pursuant to, or enforced, any Loan  Documents), (b) any Tax that is attributable to a Lender’s or the Administrative Agent’s failure to comply  





 






43  with Section 2.17(e), (c) except in the case of an assignee pursuant to a request by the Borrower under  Section 2.19, any U.S. federal withholding Taxes imposed due to a Requirement of Law in effect at the  time a Lender becomes a party hereto (or designates a new lending office), except to the extent that such  Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending  office (or assignment), to receive additional amounts with respect to such withholding Tax under  Section 2.17 and (d) any withholding Tax imposed pursuant to FATCA.  “Existing Class” means Existing Term Loan Classes and each Class of Existing Revolving  Commitments.  “Existing Credit Agreement Indebtedness” means the principal, interest, fees and other amounts,  other than contingent obligations not due and payable and that by their terms survive the termination of the  Existing Credit Facility (as defined below), outstanding under that certain Credit Agreement, dated as of  October 31, 2014 (as amended, supplemented or otherwise modified from time to time prior to the Effective  Date, the “Existing Credit Facility”), by and among Norvax, GoHealth LLC, Levelbott LLC and ASAP  Quotes LLC (as borrowers) and FirstMerit Bank, N.A. (k/n/a Huntington National Bank) as lender.  “Existing Credit Facility” has the meaning assigned to such term in the definition of “Existing  Credit Agreement Indebtedness”.   “Existing Revolving Class” has the meaning assigned to such term in Section 2.24(b).  “Existing Revolving Commitments” has the meaning assigned to such term in Section 2.24(b).   “Existing Revolving Loans” has the meaning assigned to such term Section 2.24(b).   “Existing Term Loan Class” has the meaning assigned to such term in Section 2.24(a).  “Extended Loans/Commitments” means Extended Term Loans, Extended Revolving Loans and/or  Extended Revolving Commitments.  “Extended Revolving Commitments” has the meaning assigned to such term in Section 2.24(b).  “Extended Revolving Loans” has the meaning assigned to such term in Section 2.24(b).  “Extended Term Loans” has the meaning assigned to such term in Section 2.24(a).  “Extending Lender” has the meaning assigned to such term in Section 2.24(c).  “Extension Date” has the meaning assigned to such term in Section 2.24(e).  “Extension Election” has the meaning assigned to such term in Section 2.24(c).  “Extension Series” means all Other Term Loans, Other Revolving Loans, Other Term  Commitments or Other Revolving Commitments (as applicable) that are established pursuant to the same  Loan Modification Agreement (or any subsequent Loan Modification Agreement to the extent such Loan  Modification Agreements expressly provides that the Other Term Loans, Other Revolving Loans, Other  Term Commitments or Other Revolving Commitments, as applicable, provided for therein are intended to  be a part of any previously established Extension Series) and that provide for the same interest margins,  extension fees, if any, and amortization schedule.  





 






44  “Fair Market Value” means with respect to any asset or group of assets on any date of  determination, the value of the consideration obtainable in a sale of such asset at such date of determination  assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly  manner over a reasonable period of time having regard to the nature and characteristics of such asset.   Except as otherwise expressly set forth herein, such value shall be determined in good faith by the Borrower.  “FATCA” means Sections 1471 through 1474 of the Code as in effect on the Effective Date (or  any amended or successor version that is substantively comparable and not materially more onerous to  comply with), any current or future Treasury regulations or official administrative interpretations thereof,  any agreements entered into pursuant to current Section 1471(b)(1) of the Code, any intergovernmental  agreements entered into in connection with the implementation of such current Sections of the Code (or  any such amended or successor version described above), and any laws, fiscal or regulatory legislation,  rules, guidance notes and practices adopted by a non-U.S. jurisdiction to implement the foregoing.  “FCPA” has the meaning assigned to such term in Section 3.17(b).  “Federal Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank  of New York based on such day’s federal funds transactions by depository institutions (as determined in  such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to  time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the  federal funds effective rate; provided, that if the Federal Funds Effective Rate for any day is less than zero,  the Federal Funds Effective Rate for such day will be deemed to be zero; provided, further, that if such rate  is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the  next 1/100 of 1%) of the quotations for the day of such transactions received by the Administrative Agent  from three federal funds brokers of recognized standing selected by it.  “Fee Letter” means, collectively, (i) that certain Credit Facilities Fee Letter, dated as of August 15,  2019, by and among Parent, Owl Rock Capital Corporation, Owl Rock Capital Corporation II, Owl Rock  Technology Finance Corp. and Owl Rock Capital Advisors LLC, MidCap Financial Trust and Benefit  Street Partners L.L.C. and (ii) that certain Fee Letter, dated as of August 15, 2019, by and among Parent  and Owl Rock Capital Advisors, LLC.  “FEMA” means the Federal Emergency Management Agency or any successor governmental  agency or similar authority.  “Financial Officer” means the chief financial officer, principal accounting officer, treasurer,  assistant treasurer or controller of the Borrower.  “Financial Maintenance Covenant” means the covenant set forth in Section 6.13.  “Financial Maintenance Covenant Event of Default” has the meaning assigned to such term in  Section 7.01(d).  “Financing Lease Obligation” means, as applied to any Person, an obligation that is required to be  accounted for as a financing or capital lease (and, for the avoidance of doubt, not an operating lease) for  financial reporting purposes in accordance with GAAP.  At the time any determination thereof is to be  made, the amount of the liability in respect of a financing or capital lease would be the amount required to  be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP  as in effect on December 31, 2018 (it being understood that all obligations of the Borrower and the  Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance  with GAAP as in effect on the December 31, 2018 (whether or not such operating lease was in effect on  





 






45  such date) shall continue to be accounted for as an operating lease (and not as a Financing Lease Obligation)  for purposes of this Agreement regardless of any change in GAAP following December 31, 2018 that would  otherwise require such obligation to be recharacterized as a Financing Lease Obligation, to the extent that  financial reporting shall not be affected hereby).  “Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of 1968 as now  or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973 as now  or hereafter in effect or any successor statute thereto, (c) the National Flood Insurance Reform Act of 1994  as now or hereafter in effect or any successor statute thereto, (d) the Flood Insurance Reform Act of 2004  as now or hereafter in effect or any successor statute thereto and (e) the Biggert-Waters Flood Insurance  Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.  “Foreign Benefit Plan Event” means, with respect to any Foreign Pension Plan, (a) the existence of  unfunded liabilities in excess of the amount permitted under any applicable law or in excess of the amount  that would be permitted absent a waiver from applicable Governmental Authority or (b) the failure to make  the required contributions or payments, under any applicable law, on or before the due date for such  contributions or payments.  “Foreign Intellectual Property” means any right, title or interest in or to any Intellectual Property  governed by or arising or existing under, pursuant to or by virtue of the laws of any jurisdiction other than  the United States of America or any state thereof.  “Foreign Pension Plan” means any defined benefit plan sponsored, maintained or contributed to by  any Loan Party or any Foreign Subsidiary that under applicable law is required to be funded through a trust  or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental  Authority.  “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other  than the United States of America, any State thereof or the District of Columbia.  “Foreign Subsidiary/FSHCO Prepayment Event” has the meaning assigned to such term in  Section 2.11(i).  “FSHCO” means any direct or indirect Domestic Subsidiary of Holdings (other than the Borrower)  substantially all of the assets of which consist of the Equity Interests or Indebtedness of one or more Foreign  Subsidiaries that are CFCs and any other assets incidental thereto.  “Funded Debt” means all Indebtedness of the Borrower and the 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 the Borrower or any Restricted Subsidiary,  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.  “GAAP” means generally accepted accounting principles in the United States of America, as in  effect from time to time, subject to Section 1.04.  “Governmental Authority” means the government of the United States of America, any other nation  or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,  regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,  





 






46  regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).  “Granting Lender” has the meaning assigned to such term in Section 9.04(f).  “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise,  of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other  Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation  of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or  payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any  security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of  assuring the owner of such Indebtedness of the payment thereof, (c) to maintain working capital, equity  capital or any other financial statement condition or liquidity of the primary obligor so as to enable the  primary obligor to pay such Indebtedness or (d) as an account party in respect of any letter of credit or letter  of guaranty issued to support such Indebtedness; provided that the term Guarantee shall not include  endorsements for collection or deposit in the ordinary course of business or customary and reasonable  indemnity obligations in effect on the Effective Date or entered into after the Effective Date in connection  with any acquisition or disposition of assets permitted under this Agreement (other than such obligations  with respect to Indebtedness).  The amount of any Guarantee shall be deemed to be an amount equal to the  stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such  Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect  thereof as determined in good faith by a Financial Officer.  The term “Guarantee” as a verb has a  corresponding meaning.  “Guarantee Agreement” means the Guarantee Agreement among the Loan Parties and the  Administrative Agent, substantially in the form of Exhibit F.  “Guarantors” means collectively, Holdings, the Subsidiary Loan Parties and the Borrower (other  than with respect to its own Secured Obligations).  “Hazardous Materials” means all explosive, radioactive, hazardous or toxic materials, substances,  wastes or other pollutants, including petroleum or petroleum by-products or distillates, asbestos or asbestos  containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other  materials, substances or wastes of any nature regulated as hazardous or toxic, or any other term of similar  meaning and regulatory import, pursuant to any Environmental Law.  “Health Care Laws” means all health care regulatory Requirements of Law, to the extent applicable  to the items and services provided by the Borrower and each Restricted Subsidiary, including, as may be  applicable: (i) all Requirements of Law relating to state insurance, health maintenance organization or  managed care Requirements of Law (including Requirements of Law relating to Medicaid programs and  Medicare Supplement plans), (ii) state professional fee-splitting Requirements of Law (including common  law), (iii) the Medicare Program Requirements of Law at Title XVIII of the Social Security Act, 42 U.S.C.  §§ 1395-1395hhh and Medicare Program rules promulgated thereunder, including but not limited to the  Medicare Marketing and Communication Guidelines, 42 C.F.R. Parts 422, 423, and 417; and Requirements  of Law and rules relating to Medicare Supplement (e.g., Medigap) plans, 42 U.S.C. § 1395ss and 42 C.F.R.  Part 403, (iv) the Medicaid statute, Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v, (v) the  Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), (vi) the Federal False Claims Act, 31 U.S.C. §§ 3729- 3733 (as amended), (vii) the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801-3812, (viii) the Anti- Kickback Act of 1986, 41 U.S.C. §§ 51-58, (ix) the Federal Civil Monetary Penalties Law, 42 U.S.C.  §§ 1320a-7a and 1320a-7b, (x) the Exclusion Laws, 42 U.S.C. § 1320a-7, (xi) the Federal Health Care  Fraud Law (18 U.S.C. § 1347), (xii) TRICARE, 10 U.S.C. § 1071, (xiii) all state Requirements of Law  





 






47  governing the offer, payment, solicitation or receipt of any remuneration in exchange for a referral,  furnishing, arranging for the furnishing, lease, purchase, order, or recommendation of any healthcare  product or service.  “Holdings” means (a) Initial Holdings, (b) any Successor Holdings, to the extent applicable, or (c)  at the election of the Borrower, any other Person or Persons (the “New Holdings”) that is a Subsidiary of  (or are Subsidiaries of) Holdings or of any Parent Entity of Holdings (or the previous New Holdings, as the  case may be) (the “Previous Holdings”) but not the Borrower; provided that (a) such New Holdings directly  or indirectly owns 100% of the Equity Interests of the Borrower, (b) the New Holdings shall expressly  assume all the obligations of the Previous Holdings under this Agreement and the other Loan Documents  pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the  Administrative Agent, (c) the New Holdings shall have delivered to the Administrative Agent (for further  distribution by the Administrative Agent to the Lenders) a certificate of an Responsible Officer stating that  such substitution and any supplements to the Loan Documents preserve the enforceability of the Guarantee  and the perfection and priority of the Liens under the Security Documents, (d) if reasonably requested by  the Administrative Agent, an opinion of counsel in form and substance reasonably satisfactory to the  Administrative Agent shall be delivered by the Borrower to the Administrative Agent to the effect that,  without limitation, such substitution does not breach or result in a default under this Agreement or any other  Loan Document, (e) all Equity Interests of the Borrower and substantially all of the other assets of the  Previous Holdings are contributed or otherwise transferred to such New Holdings and pledged to secure  the Secured Obligations and (f) no Event of Default has occurred and is continuing at the time of such  substitution and such substitution does not result in any Event of Default or material tax liability; provided,  further, that if each of the foregoing is satisfied, the Previous Holdings shall be automatically released from  all its obligations under the Loan Documents and any reference to “Holdings” in the Loan Documents shall  be meant to refer to the “New Holdings.”  “IFRS” means international accounting standards as promulgated by the International Accounting  Standards Board.  “Immaterial Subsidiary” means any Subsidiary that is not a Material Subsidiary.  “Immediate Family Members” means with respect to any individual, such individual’s estate, heirs,  legatees, distributees, child, stepchild, grandchild or more remote descendant, parent, stepparent,  grandparent, spouse, former spouse, qualified domestic partner, sibling, niece, nephew, mother-in-law,  father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law (including adoptive  relationships), any person sharing an individual’s household (other than an unrelated tenant or employee)  and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any  of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing  individuals or any donor-advised fund of which any such individual is the donor.  “Impacted Loans” has the meaning assigned to such term in Section 2.14(a)(ii).  “Incremental Base Amount” means in the case of Indebtedness that constitutes Incremental  Facilities, Incremental Equivalent Debt, Ratio Indebtedness and Acquisition Debt, an aggregate amount for  all such Indebtedness not to exceed the sum of (i) the greater of (x) $25,000,000 and (y) 100% of  Consolidated Cash EBITDA for the Test Period most recently ended on or prior to such date of  determination (measured as of such date), less (ii) the amount of all Incremental Facilities, all Incremental  Equivalent Debt, all Ratio Indebtedness and all Acquisition Debt that was incurred in reliance on this  definition and prior to the applicable date of incurrence, in each case, after giving effect to any permitted  reclassification of the amounts incurred pursuant to this definition as being incurred pursuant to clause (c)  





 






48  of the definition of “Incremental Cap”, in accordance with the last sentence of the definition of “Incremental  Cap”.  “Incremental Cap” means, as of any date of determination occurring after the Amendment No. 1  Effective Date, the sum of  (a) after the Suspension Period has ended, the Incremental Base Amount (for the avoidance of  doubt, no amount shall be available under this clause (a) during the Suspension Period), plus  (b) the aggregate amount of all voluntary prepayments of any Term Loans, Incremental  Equivalent Debt, and/or Credit Agreement Refinancing Indebtedness, in each case secured on an equal  priority basis (except with respect to the control of remedies) with the Secured Obligations and/or voluntary  permanent reductions of the Revolving Commitments (in each case other than with the proceeds of an  Incremental Facility incurred pursuant to clause (c) below); provided that the relevant prepayment is not  funded with proceeds from the incurrence of any long-term Indebtedness (other than loans under any  revolving credit facility), including any Indebtedness incurred pursuant to clause (c) below, plus  (c) the maximum aggregate principal amount that can be incurred, after giving effect to the  incurrence of any Incremental Facility or Incremental Equivalent Debt pursuant to this clause (c) (which  shall assume that the full amounts of any Incremental Revolving Commitment Increase established at such  time are fully drawn, whether or not any such amounts are actually drawn) and the use of proceeds thereof,  on a pro forma basis (but without giving effect to any simultaneous incurrence of any Incremental Facility  or Incremental Equivalent Debt made pursuant to the foregoing clause (a) or (b) and any simultaneous  borrowings of up to $15,000,000 under the Revolving Credit Facility), without causing the Total Net Cash  Leverage Ratio to exceed (x) during the Suspension Period, 4.00:1.00 and (y) after the Suspension Period  has ended, 6.00:1.00, in each case, for the Test Period most recently ended on or prior to the date of such  incurrence (measured as of the date such Indebtedness is incurred based upon the financial statements most  recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a)  or (b)); provided that in the case of a Limited Condition Transaction, the testing thereof may be done in  accordance with Section 1.08, plus  (d) after giving effect to the amendment contemplated by Section 2 of the Incremental Facility  Agreement No. 4, but prior to giving effect to the Revolving Credit Commitment Increase contemplated by  Section 3 of Incremental Facility Agreement No. 4, $142,000,000, plus  (e) after giving effect to the amendment contemplated by Section 2 of Amendment No. 6, but  prior to giving effect to the 2021-2 Incremental Term Loan Commitment contemplated by Section 3 of  Amendment No. 6, $100,000,000.  It is understood and agreed that, (x) any Incremental Facility or Incremental Equivalent Debt  incurred in reliance on clause (a) or (b) of this definition may be reclassified as the Borrower elects and  upon notice to the Administrative Agent, from time to time, as incurred in reliance on clause (c) if the  Borrower is able to satisfy the applicable incurrence test set forth in clause (c) at such time on a pro forma  basis and (y) for the avoidance of doubt, the Loan Parties shall be deemed to have incurred any Incremental  Facility or Incremental Equivalent Debt in reliance on the foregoing clause (c) prior to any such incurrence  in reliance on foregoing clauses (a) or (b), unless otherwise determined by the Borrower.  “Incremental Commitment” has the meaning assigned to such term in Section 2.20(a).  “Incremental Equivalent Debt” has the meaning assigned to such term in Section 6.01(a)(xxiii).  





 






49  “Incremental Facility” has the meaning assigned to such term in Section 2.20(a).  “Incremental Facility Agreement No. 2” means that certain Incremental Facility Agreement No. 2,  dated as of May 7, 2020, among Holdings, the Borrower, the 2020 Incremental Revolving Lenders party  thereto, the Administrative Agent and the other parties party thereto.   “Incremental Facility Agreement No. 2 Effective Date” has the meaning assigned to such term in  Incremental Facility Agreement No. 2.  “Incremental Facility Agreement No. 3” means that certain Incremental Facility Agreement No. 3,  dated as of June 11, 2020, among Holdings, the Borrower, the Incremental No. 3 Revolving Lenders party  thereto, the Administrative Agent and the other parties party thereto.   “Incremental Facility Agreement No. 3 Effective Date” has the meaning assigned to such term in  Incremental Facility Agreement No. 3.  “Incremental Facility Agreement No. 4” means that certain Amendment No. 4 to Credit Agreement  and Incremental Facility Agreement, dated as of May 7, 2021, among Holdings, the Borrower, the  Incremental No. 4 Revolving Lenders party thereto, the Administrative Agent and the other parties party  thereto.   “Incremental Facility Agreement No. 4 Effective Date” has the meaning assigned to such term in  Incremental Facility Agreement No. 4.  “Incremental Facility Amendment” has the meaning assigned to such term in Section 2.20(f).  “Incremental No. 3 Revolving Commitments” means, in respect of each Incremental No. 3  Revolving Lender, the amount set forth opposite such Lender’s name on Schedule 1 to Incremental Facility  Agreement No. 3.  The aggregate amount of Incremental No. 3 Revolving Commitments as of the  Incremental Facility Agreement No. 3 Effective Date is $8,000,000.  “Incremental No. 3 Revolving Lenders” has the meaning assigned to such term in the Incremental  Facility Agreement No. 3.  “Incremental No. 4 Revolving Commitments” means, in respect of each Incremental No. 4  Revolving Lender, the amount set forth opposite such Lender’s name on Schedule 1 to Incremental Facility  Agreement No. 4.  The aggregate amount of Incremental No. 4 Revolving Commitments as of the  Incremental Facility Agreement No. 3 Effective Date is $142,000,000.  “Incremental No. 4 Revolving Lenders” has the meaning assigned to such term in the Incremental  Facility Agreement No. 4.  “Incremental Refinancing Facility” has the meaning assigned to such term in Section 2.20(a).  “Incremental Refinancing Term Loans” has the meaning assigned to such term in Section 2.20(a).  “Incremental Revolving Commitment Increase” has the meaning assigned to such term in  Section 2.20(a).  





 






50  “Incremental Term Loan” has the meaning assigned to such term in Section 2.20(a), which shall  include the 2020 Incremental Term Loans, the 2021 Incremental Term Loans and the 2021-2 Incremental  Term Loans.  “incur” means create, issue, assume, guarantee, incur or otherwise become directly or indirectly  liable for any Indebtedness; provided, however, that any Indebtedness of a Person existing at the time such  Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall  be deemed to be incurred by such Person at the time it becomes a Restricted Subsidiary.  The term  “incurrence” when used as a noun shall have a correlative meaning.  Solely for purposes of determining  compliance with Section 6.01:  (a) amortization of debt discount or the accretion of principal with respect to a non-interest  bearing or other discount security;  (b) the payment of regularly scheduled interest in the form of additional Indebtedness of the  same instrument or the payment of regularly scheduled dividends on Equity Interests in the form of  additional Equity Interests of the same class and with the same terms; and  (c) the obligation to pay a premium in respect of Indebtedness arising in connection with the  issuance of a notice of prepayment, redemption, repurchase, defeasance, acquisition or similar payment or  making of a mandatory offer to prepay, redeem, repurchase, defease, acquire, or similarly pay such  Indebtedness;  will not be deemed to be the incurrence of Indebtedness.  “Indebtedness” of any Person means, without duplication,  (a) all obligations of such Person for borrowed money,  (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments  to the extent the same would appear as a liability on a balance sheet of such Person prepared in accordance  with GAAP,  (c) all obligations of such Person under conditional sale or other title retention agreements  relating to property acquired by such Person,  (d) all obligations of such Person in respect of the deferred purchase price of property or  services (excluding (i) current trade or other ordinary course payables or liabilities or accrued expenses (but  not any refinancings, extensions, renewals or replacements thereof) incurred in the ordinary course of  business and maturing within 365 days after the incurrence thereof except if such trade or other ordinary  course payables or liabilities or accrued expenses bear interest, (ii) any earn-out obligation, purchase price  adjustment or similar obligation until such obligation becomes a liability on the balance sheet of such  Person in accordance with GAAP and if not paid when due and payable and (iii) liabilities associated with  customer prepayments and deposits),  (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an  existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such  Person, whether or not the Indebtedness secured thereby has been assumed,  (f) to the extent not otherwise included, all Guarantees by such Person of Indebtedness of  others,  





 






51  (g) all Financing Lease Obligations of such Person,  (h) all obligations, contingent or otherwise, of such Person as an account party in respect of  letters of credit and letters of guaranty, and  (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances;  provided that the term “Indebtedness” shall not include (i) prepaid or deferred revenue (including  billing in excess of earnings), (ii) purchase price holdbacks in respect of a portion of the purchase price of  an asset to satisfy warranties or other unperformed obligations of the seller of such asset, (iii) contingent  indemnity and similar obligations and amounts owed to dissenting equityholders in connection with, or as  a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual,  contingent or potential) with respect thereto (including any accrued interest), with respect to the Permitted  Acquisitions, (iv) liabilities associated with customer prepayments and deposits and other accrued  obligations (including transfer pricing), in each case incurred in the ordinary course of business, (v) Non- Financing Lease Obligations, (vi) customary obligations under employment agreements and deferred  compensation arrangements and (vii) Indebtedness of any Parent Entity (for which none of the Borrower  or any Restricted Subsidiary are legally obligated) appearing on the balance sheet of the Borrower or any  Restricted Subsidiary solely by reason of “pushdown” accounting under GAAP.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any  partnership in which such Person is a general partner), to the extent such Person is liable therefor as a result  of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms  of such Indebtedness provide that such Person is not liable therefor.  The amount of Indebtedness of any  Person for purposes of clause (e) above shall (unless such Indebtedness has been assumed by such Person)  be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the  Fair Market Value of the property encumbered thereby as determined by such Person in good faith.  For all  purposes hereof, the Indebtedness of the Borrower and the Restricted Subsidiaries shall exclude  intercompany liabilities arising from their cash management, tax, and accounting operations and  intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any  rollover or extensions of terms) and made in the ordinary course of business.  “Indemnified Person” has the meaning assigned to such term in Section 9.03(b).  “Indemnified Taxes” means all Taxes, other than Excluded Taxes and Other Taxes, imposed on or  with respect to any payment made by or on account of any obligation of any Loan Party under any Loan  Document.  “Information” has the meaning assigned to such term in Section 9.12(a).  “Initial Holdings” has the meaning assigned to such term in the preamble hereto.  “Initial Revolving Borrowing Amount” means one or more Borrowings of Revolving Loans on the  Effective Date in an amount not to exceed the aggregate amounts specified or referred to in the definition  of the term “Permitted Initial Revolving Credit Borrowing Purposes”; provided that, without limitation,  Letters of Credit may be issued on the Effective Date to, among other things, backstop, replace or otherwise  provide credit support in respect of, letters of credit outstanding immediately prior to the Effective Date  under the Existing Credit Facility.  “Intellectual Property” has the meaning assigned to such term in the Collateral Agreement.  





 






52  “Initial Term Facility” means the term loan facility represented by the Initial Term Loans.  “Initial Term Loan Commitment” means (a) with respect to each Term Lender that is a Lender on  the Effective Date, the commitment of such Term Lender to make an Initial Term Loan hereunder on the  Effective Date in the amount set forth on Schedule 2.01 under the caption “Initial Term Loan Commitment”  and (b) with respect to any Lender that becomes a Lender after the Effective Date, or in the Assignment  and Assumption to which such Lender shall have assumed its Initial Term Loan Commitment, as the case  may be.  As of the Effective Date, the Initial Term Loan Commitment was $300,000,000.  “Initial Term Loans” means the loans made on the Effective Date pursuant to Section 2.01(a)(i).   “Initial Term Maturity Date” means the sixth anniversary of the Effective Date.  “Intercompany Note” means the Intercompany Note, dated as of the Effective Date, substantially  in the form of Exhibit K, executed by Holdings, the Borrower and each other Restricted Subsidiary party  thereto.  “Intercreditor Agreements” means (a) to the extent executed in connection with the incurrence of  Indebtedness secured by Liens on the Collateral which rank (or are intended to rank) equal in priority (but  without regard to the control of remedies) to the Liens on the Collateral securing the Secured Obligations,  an intercreditor agreement substantially in the form of Exhibit D among the Administrative Agent and/or  the Collateral Agent and one or more authorized representatives for holders of one or more classes of  applicable Indebtedness secured by Liens on the Collateral which are intended to rank equal in priority (but  without regard to the control of remedies) to the Liens on the Collateral securing the Secured Obligations,  with such changes thereto as are reasonably acceptable to the Administrative Agent and/or the Collateral  Agent, the Required Lenders (provided that if any such Intercreditor Agreement is posted to the Lenders  three Business Days before being executed and the Required Lenders shall not have objected thereto, the  Required Lenders shall be deemed to have agreed that the Administrative Agent’s and/or the Collateral  Agent’s entry into such Intercreditor Agreement is reasonable and to have consented to such Intercreditor  Agreement and the Administrative Agent’s and/or the Collateral Agent’s execution thereof) and the  Borrower (an intercreditor agreement described in this clause (a), an “Equal Priority Intercreditor  Agreement”) and (b) to the extent executed in connection with the incurrence of Indebtedness secured by  Liens on the Collateral which rank (or are intended to rank) junior to the Liens on the Collateral securing  the Secured Obligations, an intercreditor agreement substantially in the form of Exhibit E among the  Administrative Agent and/or the Collateral Agent and one or more authorized representatives for holders  of one or more classes of applicable Indebtedness secured by Liens on the Collateral which are intended to  rank junior in priority (but without regard to the control of remedies) to the Liens on the Collateral securing  the Secured Obligations, with such changes thereto as are reasonably acceptable to the Administrative  Agent and/or the Collateral Agent, the Required Lenders (provided that if any such Intercreditor Agreement  is posted to the Lenders three Business Days before being executed and the Required Lenders shall not  have objected thereto, the Required Lenders shall be deemed to have agreed that the Administrative Agent’s  and/or the Collateral Agent’s entry into such Intercreditor Agreement is reasonable and to have consented  to such Intercreditor Agreement and the Administrative Agent’s and/or the Collateral Agent’s execution  thereof) and the Borrower (an intercreditor agreement described in this clause (b), a “Junior Priority  Intercreditor Agreement”).  “Interest Election Request” means a request by the Borrower to convert or continue a Borrowing  in accordance with Section 2.07 substantially in the form of Exhibit G hereto.  “Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each  March, June, September and December, (b) with respect to any Eurocurrency Loan, the last day of the  





 






53  Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency  Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of  such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest  Period and (c) to the extent necessary to create a fungible tranche of Term Loans, the date of the incurrence  of any Incremental Term Loans.  “Interest Period” means, with respect to any Eurocurrency Borrowing, the period commencing on  the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is  one, three or six months thereafter (or, if available to each Lender participating therein, 12 months or such  other period less than one month thereafter as the Borrower may elect) (provided that (a) 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 (b) 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.  No Interest Period shall extend beyond the maturity date of  the facility under which such Loan was made.   “Interpolated Screen Rate” means, in relation to the LIBO Rate, the rate which results from  interpolating on a linear basis between:  (a) the applicable LIBO Rate for the longest period (for which that  LIBO Rate is available) which is less than the Interest Period of that Loan; and (b) the applicable LIBO  Rate for the shortest period (for which that LIBO Rate is available) which exceeds the Interest Period of  that Loan, each as of approximately 11:00 a.m. (London, England time) two Business Days prior to the  commencement of such Interest Period of that Loan.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person, whether by means of (a) the purchase or other acquisition of Equity Interests or Indebtedness or  other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption  of Indebtedness of, or purchase or other acquisition of any other Indebtedness or equity participation or  interest in, another Person, including any partnership or Joint Venture interest in such other Person  (excluding, in the case of the Borrower and the Restricted Subsidiaries, (i) intercompany advances arising  from their cash management, tax, and accounting operations and (ii) intercompany loans, advances or  Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and  made in the ordinary course of business) or (c) the purchase or other acquisition (in one transaction or a  series of transactions) of all or substantially all of the property and assets or business of another Person or  assets constituting a business unit, line of business or division of such Person.  The amount, as of any date  of determination, of (i) any Investment in the form of a loan or an advance shall be the principal amount  thereof outstanding on such date, minus any payments in cash or Cash Equivalents actually received by  such investor representing interest in respect of such Investment (to the extent any such payment to be  deducted does not exceed the remaining principal amount of such Investment and without duplication of  amounts increasing the Available Amount or the Available Equity Amount), but without any adjustment  for writedowns or write-offs (including as a result of forgiveness of any portion thereof) with respect to  such loan or advance after the date thereof, (ii) any Investment in the form of a Guarantee shall be equal to  the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which  such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in  respect thereof, as determined in good faith by a Financial Officer, (iii) any Investment in the form of a  transfer of Equity Interests or other non-cash property by the investor to the investee, including any such  transfer in the form of a capital contribution, shall be the Fair Market Value of such Equity Interests or  other property as of the time of the transfer, minus any payments actually received by such investor  





 






54  representing a Return in respect of such Investment (to the extent such payments do not exceed, in the  aggregate, the original amount of such Investment and without duplication of amounts increasing the  Available Amount or the Available Equity Amount), but without any other adjustment for increases or  decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date  of such Investment, and (iv) any Investment (other than any Investment referred to in clause (i), (ii) or  (iii) above) by the specified Person in the form of a purchase or other acquisition for value of any Equity  Interests, evidences of Indebtedness or other securities of any other Person shall be the original cost of such  Investment, except that the amount of any Investment in the form of an Acquisition Transaction shall be  the Acquisition Consideration (including any Indebtedness assumed in connection therewith), plus (A) the  cost of all additions thereto and minus (B) the amount of any portion of such Investment that has been  repaid to the investor as a Return in respect of such Investment (to the extent such amounts referred to in  clause (B) do not, in the aggregate, exceed the original cost of such Investment plus the costs of additions  thereto and without duplication of amounts increasing the Available Amount or the Available Equity  Amount), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs  or write-offs with respect to, such Investment after the date of such Investment.  For purposes of  Section 6.04, if an Investment involves the acquisition of more than one Person, the amount of such  Investment shall be allocated among the acquired Persons in accordance with GAAP; provided that pending  the final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall  be as reasonably determined by a Financial Officer.  “Investor” means the Sponsor and certain other investors (including the Rollover Investors and the  Management Investors) arranged by and/or designated by the Sponsor who hold, or will hold, Equity  Interests in Holdings (or any Parent Entity) on or shortly following the Effective Date after giving effect to  the Transactions.  “IPO” means (a) the initial underwritten public offering (other than a public offering pursuant to a  registration statement on Form S-8) of common Equity Interests in Holdings, the Borrower or a Parent  Entity of Holdings or (b) the acquisition, purchase, merger or combination of Holdings, the Borrower or a  Parent Entity of Holdings, by, or with, a publicly traded special acquisition company that (i) is an entity  organized or existing under the laws of the United States, any State thereof or the District of Columbia,  (ii) prior to the IPO, shall have engaged in no business or activities in any material respect other than  activities related to becoming and acting as a publicly traded special acquisition company and entry into  the IPO and (iii) immediately prior to the IPO, shall have no material assets other than cash and Cash  Equivalents; provided that any merger or combination pursuant to this sentence involving Holdings shall  comply with the requirements of Section 6.06(o).  “IRS” means the United States Internal Revenue Service.  “ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”  published by the International Chamber of Commerce (or such later version thereof as may be in effect at  the time of issuance).  “Issuing Bank” means (a) Owl Rock Capital Corporation and (b) each other Revolving Lender that  shall have become an Issuing Bank hereunder as provided in Section 2.05(k) or Section 9.04(j)(i) (other  than any Person that shall have ceased to be an Issuing Bank as provided in Section 2.05(l) or Section  9.04(j)(i)), each in its capacity as an issuer of Letters of Credit hereunder.  Each Issuing Bank may, in its  discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in  which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued  by such Affiliate.  





 






55  “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement and instrument entered into by the Issuing Bank and the Borrower (or  any Subsidiary) or in favor of the Issuing Bank and relating to such Letter of Credit.  “Joint Bookrunners” means Owl Rock Capital Advisors, LLC, MidCap Financial Trust (acting  through its affiliates as it deems appropriate) and Benefit Street Partners L.L.C. (acting through such of its  affiliates as it deems appropriate).  “Joint Lead Arrangers” means Owl Rock Capital Advisors, LLC, MidCap Financial Trust (acting  through its affiliates as it deems appropriate) and Benefit Street Partners L.L.C. (acting through such of its  affiliates as it deems appropriate).  “Joint Venture” means a joint venture, partnership or similar arrangement, whether in corporate,  partnership or other legal form.  “Judgment Currency” has the meaning assigned to such term in Section 9.14(b).  “Junior Indebtedness” means any debt for borrowed money that is secured by Liens on the  Collateral which rank (or are intended to rank) junior in priority to the Liens on the Collateral securing the  Secured Obligations.  “Junior Priority Intercreditor Agreement” has the meaning assigned to such term in the definition  of “Intercreditor Agreement.”  “Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date  applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration  date of any Incremental Facility, any Other Term Loan, any Other Term Commitment, any Other Revolving  Loan or any Other Revolving Commitment, in each case as extended in accordance with this Agreement  from time to time.  “LC Commitment” means, in the case of each Issuing Bank, such amount as set forth in Schedule  2.05 hereto.  “LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.  “LC Exposure” means, at any time, (a) the sum of the undrawn amounts of all outstanding Letters  of Credit at such time plus (b) the sum of the amounts of all LC Disbursements that have not yet been  reimbursed by or on behalf of the Borrower at such time.  The LC Exposure of any Revolving Lender at  any time shall be its Applicable Percentage of the total LC Exposure at such time.  For all purposes of this  Agreement, 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 3.13 or Rule 3.14 of the ISP or Article 29(a) of  the Uniform Customs and Practice for Documentary Credits or applicable law, or the express terms of the  Letter of Credit, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining  available to be drawn.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall  be deemed to be the amount available to be drawn under such Letter of Credit in effect at such time;  provided that with respect to any Letter of Credit that, by its terms or the terms of any document related  thereto, provides for one or more automatic increases in the amount available thereunder, the amount of  such Letter of Credit shall be deemed to be the maximum amount available to be drawn under such Letter  of Credit after giving effect to all such increases, whether or not such maximum amount is available to be  drawn immediately at such time.  





 






56  “LCT Election” has the meaning specified in Section 1.08.  “LCT Test Date” has the meaning specified in Section 1.08.  “Lenders” means the Term Lenders, the Revolving Lenders and any other Person that shall have  become a party hereto pursuant to an Assignment and Assumption or an Incremental Facility Amendment  (including the 2020 Incremental Term Lenders under Amendment No. 1, the 2021 Incremental Term  Lenders under Amendment No. 5 and the 2021-2 Incremental Term Lenders under Amendment No. 6),  other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.  “Letter of Credit” means any letter of credit issued pursuant to Section 2.05 of this Agreement,  other than any such letter of credit that shall have ceased to be a “Letter of Credit” outstanding hereunder  pursuant to Section 9.05.  A Letter of Credit may be a commercial letter of credit, trade letter of credit or a  standby letter of credit; provided that no Issuing Bank shall be required to issue a commercial letter of credit  or trade letter of credit without its consent.  “Letter of Credit Application” means an application and agreement for the issuance or amendment  of a Letter of Credit in the form from time to time in use by the Issuing Bank.  “Letter of Credit Sublimit” means $5,000,000.  “LIBO Rate” means for any Interest Period as to any LIBOR Rate Loan, (i) the rate per annum  determined by the Administrative Agent to be the offered rate which appears on the applicable Bloomberg  screen page which displays the London interbank offered rate administered by ICE Benchmark  Administration Limited (the “LIBO Rate”) for deposits (for delivery on the first day of such Interest Period)  with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m.  (London, England time), two Business Days prior to the commencement of such Interest Period, or (ii) in  the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such  page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered  rate on such other page or other service which displays the LIBO Rate for deposits (for delivery on the first  day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of  approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such  Interest Period; provided that if LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but  there is no such quotation for the Interest Period elected, the LIBO Rate shall be equal to the Interpolated  Screen Rate; and provided, further, that if any such rate determined pursuant to the preceding clauses (i) or  (ii) is less than zero, the LIBO Rate will be deemed to be zero; provided, further, that if LIBO Rates quoted  under either of the preceding clauses (i) or (ii) are not available at such time for any reason, the rate per  annum determined by the Administrative Agent to be the rate at which deposits in the relevant currency for  delivery on the first day of such Interest Period in same day funds in the approximate amount of the  Eurocurrency Loan being made, continued or converted and with a term equivalent to such Interest Period  would be offered to major banks in the London or other offshore interbank market for such currency at their  request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such  Interest Period. Notwithstanding the foregoing and solely with respect to Initial Term Loans, 2020  Incremental Term Loans, 2021 Incremental Term Loans, 2021-2 Incremental Term Loans and the  Revolving Loans, the LIBO Rate will be deemed to be 1.00% per annum if the LIBO Rate calculated  pursuant to the foregoing provisions would otherwise be less than 1.00% per annum.   “LIBOR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, bear interest at a rate determined by reference to the Adjusted LIBO  Rate.  





 






57  “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,  hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a  vendor or a lessor under any conditional sale agreement, financing or capital lease or title retention  agreement (or any financing lease having substantially the same economic effect as any of the foregoing)  relating to such asset; provided that in no event shall a Non-Financing Lease Obligation be deemed to be a  Lien.  “Limited Condition Transaction” means any Acquisition Transaction or similar Investment  permitted hereunder by the Borrower or one or more of its respective Restricted Subsidiaries of any assets,  business or Person permitted to be acquired hereunder, in each case whose consummation is not conditioned  on the availability of, or on obtaining, third-party financing.  “Liquidity” means, as of any date of determination, the sum of (a) the aggregate amount of  unrestricted cash and Cash Equivalents owned by the Borrower or any Restricted Subsidiary and held in  deposit accounts or securities accounts that are subject to Account Control Agreements granting the  Collateral Agent a first priority perfected lien, plus (b) the aggregate amount of Revolving Commitments  then in effect minus the Revolving Exposure of all Lenders at such time hereunder.  “Liquidity Cure Amount” has the meaning assigned to such term in Section 6.13(c).  “Liquidity Cure Contribution” has the meaning assigned to such term in Section 6.13(c).    “Loan Document Obligations” means (a) the due and punctual payment by the Borrower of (i) the  principal of and interest at the applicable rate or rates provided in this Agreement (including interest  accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,  regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at  maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment  required to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as  due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to  provide cash collateral, and (iii) all other monetary obligations of the Borrower under or pursuant to this  Agreement and each of the other Loan Documents, including obligations to pay fees, expense  reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent,  fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy,  insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such  proceeding), (b) the due and punctual payment and performance of all other obligations of the Borrower  under or pursuant to this Agreement and each of the other Loan Documents and (c) the due and punctual  payment and performance of all the obligations of each other Loan Party under or pursuant to this  Agreement and each of the other Loan Documents (including interest and monetary obligations incurred  during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of  whether allowed or allowable in such proceeding).   “Loan Documents” means this Agreement, any Incremental Facility Amendment (including  Amendment No. 1, Incremental Facility Agreement No. 2, Incremental Facility Agreement No. 3,  Incremental Facility Agreement No. 4, Amendment No. 5, Amendment No. 6, Amendment No. 7, and  Amendment No. 8), any Loan Modification Agreement, the Guarantee Agreement, the Collateral  Agreement, any Intercreditor Agreement, the other Security Documents and, except for purposes of  Section 9.02, any promissory notes delivered pursuant to Section 2.09(e) and the Amendment No. 7 Fee  Letter.  “Loan Modification Agreement” means a Loan Modification Agreement, in form reasonably  satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more  





 






58  accepting lenders, effecting one or more amendments hereto and to the other Loan Documents as are  contemplated by Section 2.24.  “Loan Modification Offer” means any Term Loan Extension Request or Revolving Credit  Extension Request.  “Loan Parties” means Holdings, the Borrower and the Subsidiary Loan Parties.  “Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.  “Losses” has the meaning assigned to such term in Section 9.03(b).  “LTV Ratio” means, on any date of determination, the ratio of (a) Consolidated Total Net Debt as  of the last day of the Test Period most recently ended on or prior to such determination to (b) the Contract  Asset Balance as of the last day of such Test Period.   “Majority in Interest” when used in reference to Lenders of any Class, means, at any time, (a) in  the case of the Revolving Lenders, Lenders having Revolving Exposures and unused Revolving  Commitments representing more than 50% of the sum of the aggregate Revolving Exposures and the unused  aggregate Revolving Commitments at such time, (b) in the case of Lenders with Other Revolving  Commitments, Lenders holding Other Revolving Commitments representing more than 50% of the sum of  the aggregate Other Revolving Commitments of such Lenders in such Class, (c) in the case of Lenders with  Replacement Revolving Commitments, Lenders holding Replacement Revolving Commitments  representing more than 50% of the sum of the aggregate Replacement Revolving Commitment of such  Class and (d) in the case of the Term Lenders of any Class, Lenders holding outstanding Term Loans of  such Class representing more than 50% of all Term Loans of such Class outstanding at such time; provided  that whenever there are one or more Defaulting Lenders, the total outstanding Term Loans, Revolving  Exposures and unused Revolving Commitments, Replacement Revolving Commitments or Other  Revolving Commitments of each Defaulting Lender shall be excluded for purposes of making a  determination of the Majority in Interest.   “Management Investors” means (i) NVX Holdings, Inc., Brandon Cruz, Clint Jones and the other  current and former directors, officers, partners, members and employees of any Parent Entity, Holdings,  the Borrower and/or any of their respective subsidiaries who (directly or indirectly through one or more  Equityholding Vehicles or investment vehicles) are (or will become) direct or indirect investors in the  Equity Interests of Holdings, any other Parent Entity or in the Borrower as of the Effective Date or otherwise  in connection with the Transactions and (ii) any other directors, officers, partners, members and employees  of any Parent Entity, Holdings, the Borrower and/or any of their respective subsidiaries who (directly or  indirectly through one or more Equityholding Vehicles or investment vehicles) become direct or indirect  investors in the Equity Interests of Holdings, any other Parent Entity or the Borrower after the Effective  Date; provided that, the aggregate amount of Equity Interests that may be included as Management  Investors pursuant to this clause (ii) shall in no event exceed 10% of all of the direct or indirect Equity  Interests of Holdings, any other Parent Entity or the Borrower.  “Market Convention Rate” has the meaning assigned to such term in Section 2.14(b).  “Master Agreement” has the meaning assigned to such term in the definition of “Swap Agreement.”  “Material Adverse Effect” means (a) on the Effective Date, a Material Adverse Effect (as defined  in the Merger Agreement) and (b) after the Effective Date, a circumstance or condition that would  materially and adversely affect (i) the business, financial condition or results of operations of the Borrower  





 






59  and its Restricted Subsidiaries, taken as a whole, (ii) the ability of the Loan Parties, taken as a whole, to  perform their payment obligations under the Loan Documents or (iii) the rights and remedies of the  Administrative Agent, the Collateral Agent and the Lenders under the Loan Documents.  “Material Indebtedness” means (without duplication) “third-party” indebtedness for borrowed  money (other than the Loan Document Obligations), Capital Lease Obligations, unreimbursed obligations  for letter of credit drawings and financial guarantees (other than ordinary course of business contingent  reimbursement obligations) or obligations in respect of one or more Swap Agreements, of any one or more  of the Borrower and the Restricted Subsidiaries in an aggregate principal amount exceeding (x) during the  Suspension Period, $5,000,000 and (y) after the Suspension Period has ended, $7,500,000; provided that in  no event shall any Permitted Receivables Financing be considered Material Indebtedness for any purpose.   For purposes of determining Material Indebtedness, the “principal amount” of the obligations in respect of  any Swap Agreement at any time shall be the Swap Termination Value thereof as of such date.  “Material Real Property” means each parcel of real property and the improvements thereon owned  in fee by a Loan Party with an individual Fair Market Value of greater than $2,500,000 as determined on  the Effective Date for existing real property and on the date of acquisition for any after-acquired real  property (or the date of substantial completion of any material improvements thereon or new construction  thereof).  “Material Subsidiary” means (a) each Restricted Subsidiary that, as of the last day of the fiscal  quarter of the Borrower most recently ended for which financial statements have been (or were required to  have been) delivered pursuant to Section 5.01(a) or (b), had revenues or total assets (determined on a  consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) for such quarter in excess  of 5.0% of the consolidated revenues or Consolidated Total Assets, as applicable, of the Borrower and the  Restricted Subsidiaries for such quarter or that is designated by the Borrower as a Material Subsidiary and  (b) any Restricted Subsidiary that is part of a group comprising Restricted Subsidiaries that each would not  have been a Material Subsidiary under clause (a) but that, taken together, as of the last day of the fiscal  quarter of the Borrower most recently ended for which financial statements have been (or were required to  have been) delivered pursuant to Section 5.01(a) or (b), had revenues or total assets (determined on a  consolidated basis for all such Restricted Subsidiaries and their respective Restricted Subsidiaries) for such  quarter in excess of 10.0% of the consolidated revenues or Consolidated Total Assets, as applicable, of the  Borrower and the Restricted Subsidiaries for such quarter.  “Merger” has the meaning specified in the recitals to this Agreement.  “Merger Agreement” means the Agreement and Plan of Merger, dated as of August 15, 2019, by  and among, Blizzard Aggregator, LLC, Parent, Initial Holdings, Merger Sub, the Target and Brandon Cruz  as seller representative.   “Merger Consideration” has the meaning specified in the recitals to this Agreement  “Merger Sub” has the meaning assigned to such term in the preamble hereto.  “MFN Adjustment” has the meaning provided in Section 2.20(b).  “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.  “Mortgage” means a mortgage, deed of trust, security deed, assignment of leases and rents or other  security document granting a Lien on any Mortgaged Property to secure the Secured Obligations; provided,  however, in the event any Mortgaged Property is located in a jurisdiction which imposes mortgage  





 






60  recording tax or similar fees, the applicable Mortgage shall not secure an amount in excess of 100% of the  Fair Market Value of such Mortgaged Property.  Each Mortgage shall be in a form reasonably acceptable  to the Administrative Agent.  “Mortgaged Property” means each parcel of real property and the improvements thereon owned in  fee by a Loan Party with respect to which a Mortgage is granted pursuant to Section 4.01(f) (if any) or  Section 5.11, Section 5.12 and Section 5.14 (if any).  “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA  to which a Loan Party or any ERISA Affiliate makes or is obligated to make contributions or with respect  to which any Loan Party or ERISA Affiliate could have liability under Section 4212(c) of ERISA.  “Net Income” means, with respect to any Person, the net income (loss) attributable to such Person,  determined on a consolidated basis in accordance with GAAP and before any reduction in respect of  dividends on preferred Equity Interests (other than dividends on Disqualified Equity Interests).  “Net Proceeds” means, with respect to any event, (a) the proceeds received in respect of such event  in cash or Cash Equivalents, including (i) any cash or Cash Equivalents received in respect of any non-cash  proceeds, including any cash payments received by way of deferred payment of principal pursuant to a note  or installment receivable or purchase price adjustment or earn-out (but excluding any interest payments),  but only as and when received, (ii) in the case of a casualty, insurance proceeds that are actually received  and (iii) in the case of a condemnation, eminent domain or similar event, condemnation or eminent domain  awards and similar payments that are actually received, minus (b) the sum of (i) all fees and out-of-pocket  expenses paid by the Borrower and the Restricted Subsidiaries in connection with such event (including  attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and  recording charges, transfer taxes, deed or mortgage recording taxes, issuance costs, underwriting discounts  and commissions, other customary costs and expenses and brokerage, consultant, accountant and other  customary fees), (ii) in the case of a Disposition of an asset (including pursuant to a Sale Leaseback or  Casualty Event or similar proceeding), (x) the amount of all payments that are permitted hereunder and are  made by the Borrower and the Restricted Subsidiaries as a result of such event to repay Indebtedness  permitted to be incurred hereunder (other than (x) the Loans or (y) other Indebtedness that is secured by  Liens on the Collateral that rank on an equal priority basis (but without regard to control of remedies) or on  a junior basis, in either case, to the Liens on the Collateral securing the Secured Obligations and incurred  pursuant to Section 6.01(a)) and secured by such asset or otherwise subject to mandatory prepayment as a  result of such event, (y) the pro rata portion of net cash proceeds thereof (calculated without regard to this  clause (y)) attributable to minority interests and not available for distribution to or for the account of the  Borrower and the Restricted Subsidiaries as a result thereof and (z) the amount of any liabilities directly  associated with such asset and retained by the Borrower or the Restricted Subsidiaries, (iii) in the case of  the incurrence of any Indebtedness the proceeds of which are required to be used to prepay any Class of  Loans and/or reduce any Class of Commitments under this Agreement, accrued interest and premium, if  any, on such Loans and any other amounts (other than principal) required to be paid in respect of such  Loans and/or Commitments in connection with any such prepayment and/or reduction and (iv) the amount  of all Taxes paid (or reasonably estimated to be payable) by the Borrower or any Restricted Subsidiary,  including any Taxes payable by, or any Tax distribution to, Holdings or any Parent Entity and the amount  of any reserves established by the Borrower and the Restricted Subsidiaries to fund contingent liabilities  reasonably estimated to be payable that are directly attributable to such event; provided that any reduction  at any time in the amount of any such reserves (other than as a result of payments made in respect thereof)  shall be deemed to constitute the receipt by the Borrower at such time of Net Proceeds in the amount of  such reduction.  





 






61  “New Project” means (a) each facility which is either a new facility, branch or office or an  expansion, relocation, remodeling or substantial modernization of an existing facility, branch or office  owned by the Borrower or the Subsidiaries which in fact commences operations and (b) each creation (in  one or a series of related transactions) of a business unit to the extent such business unit commences  operations or each expansion (in one or a series of related transactions) of business into a new market.  “Non-Accepting Lender” has the meaning assigned to such term in Section 2.24(h).   “Non-Cash Compensation Expense” means any non-cash expenses and costs that result from the  issuance of stock-based awards, partnership interest-based awards and similar incentive based  compensation awards or arrangements.  “Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(c).  “Non-Financing Lease Obligations” means a lease obligation that is not required to be accounted  for as a financing or capital lease on both the balance sheet and the income statement for financial reporting  purposes in accordance with GAAP.  For avoidance of doubt, an operating lease or other obligation in  respect of, or under, straight line leases, shall be considered a Non-Financing Lease Obligation.  “Non-Loan Party” means any Person that is not a Loan Party.  “Not Otherwise Applied” means, with reference to the Available Amount or the Available Equity  Amount, as applicable, that was not previously (or concurrently) applied pursuant to Section 6.04(c),  6.04(i), 6.04(n), 6.04(q), 6.08(a)(vii)(E), 6.08(a)(viii) or 6.08(b)(iv) or any Cure Amount.   “Notice of Intent to Cure” has the meaning assigned to such term in Section 7.02(c).  “Notice of Prepayment” shall have the meaning assigned to such term in Section 2.11(h).  “Notice Period” shall have the meaning assigned to such term in Section 2.14(b).   “OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.  “OID” means original issue discount.  “Organizational Documents” means (a) with respect to any corporation, the certificate or articles  of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any  non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating agreement (or equivalent or comparable constitutive documents  with respect to any non-U.S. jurisdiction); and (c) with respect to any partnership, Joint Venture, trust or  other form of business entity, the partnership, Joint Venture or other applicable agreement of formation or  organization and any agreement, instrument, filing or notice with respect thereto filed in connection with  its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation  or organization and, if applicable, any certificate or articles of formation or organization of such entity.  “Original Revolving Commitment” means each “Revolving Commitment” as defined in this  Agreement as in effect immediately prior to Amendment No. 5 Effective Date.  “Original Revolving Facility” means the revolving credit facility represented by the Original  Revolving Commitments.  





 






62  “Original Revolving Lender” means each “Revolving Lender” as defined in this Agreement as in  effect immediately prior to Amendment No. 5 Effective Date.  “Original Revolving Loans” means the Revolving Loans outstanding immediately prior to  Amendment No. 5 Effective Date.  “Other Revolving Commitments” means one or more Classes of revolving credit commitments  hereunder or extended revolving commitments that result from a Loan Modification Agreement.  “Other Revolving Loans” means the revolving loans made pursuant to any Other Revolving  Commitment.  “Other Taxes” means any and all present or future recording, stamp, documentary, transfer, sales,  property or similar Taxes arising from any payment made under any Loan Document or from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest  under, or otherwise with respect to, any Loan Document, except any such Taxes imposed with respect to  an assignment, other than an assignment pursuant to Section 2.19.  “Other Term Commitments” means one or more Classes of term loan commitments hereunder that  result from a Loan Modification Agreement.  “Other Term Loans” means one or more Classes of term loans that result from a Loan Modification  Agreement, including any Extended Term Loans.  “Parent” has the meaning assigned to such term in the recitals.  “Parent Entity” means Holdings and any Person that is a direct or indirect parent of Holdings  (including Parent) and of which Holdings is a direct or indirect subsidiary.  “Participant” has the meaning assigned to such term in Section 9.04(c)(i).  “Participant Register” has the meaning assigned to such term in Section 9.04(c)(iii).  “Participating Lender” has the meaning assigned to such term in Section 2.11(a)(ii)(C)(2).  “Participating Receivables Grantor” shall mean the Borrower or any Restricted Subsidiary that is  or that becomes a participant or originator in a Permitted Receivables Financing.  “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and  any successor entity performing similar functions.  “Perfection Requirements” means the filing of appropriate financing statements with the office of  the Secretary of State or other appropriate office of the state of organization of each Loan Party, the filing  of appropriate assignments or notices with the U.S. Patent and Trademark Office and the U.S. Copyright  Office, the execution of the Account Control Agreements by the parties thereto, the proper recording or  filing, as applicable, of Mortgages and fixture filings with respect to any Mortgaged Property, in each case  in favor of the Collateral Agent for the benefit of the Secured Parties and the delivery to the Collateral  Agent of any stock certificate or promissory note required to be delivered pursuant to the applicable Loan  Documents, together with instruments of transfer executed in blank.  





 






63  “Permitted Acquisition” means an Acquisition Transaction together with other Investments  necessary to consummate such Acquisition Transaction; provided that:  (a) except in the case of a Limited Condition Transaction (in which case, no Event of Default  shall have occurred as of the applicable LCT Test Date and no Event of Default under clause (a), (b), (h)  or (i) of Section 7.01 shall have occurred and be continuing at the time of consummation thereof), after  giving pro forma effect to any such Acquisition Transaction and Investment, no Event of Default shall have  occurred and be continuing or would result therefrom,  (b) the business of such Person, or such assets, as the case may be, constitutes a business  permitted by Section 5.16,   (c) with respect to each such purchase or other acquisition, all actions required to be taken  with respect to any such newly created or acquired Subsidiary (including each subsidiary thereof that  constitutes a Restricted Subsidiary) or assets in order to satisfy the requirements set forth in clauses (a), (b),  (c) and (d) of the definition of the term “Collateral and Guarantee Requirement” to the extent applicable  shall have been taken to the extent required by Section 5.11 and 5.12 (or arrangements for the taking of  such actions after the consummation of the Permitted Acquisition shall have been made that are reasonably  satisfactory to the Administrative Agent) (unless such newly created or acquired Restricted Subsidiary  constitutes an Excluded Subsidiary or such newly created or acquired asset constitutes an Excluded Asset),   (d) such acquired Person becomes a Restricted Subsidiary,  (e) after giving effect to such Acquisition Transaction, the Borrower shall be in pro forma  compliance with the Financial Maintenance Covenant,  (f) for any Acquisition Transaction or Investment for which the aggregate cash consideration  exceeds $40,000,000, the Borrower shall have delivered to the Administrative Agent (for further  distribution by the Administrative Agent to the Lenders) no later than three (3) Business Days prior to the  closing date of such Acquisition Transaction, copies of (i) the most recent audited and/or unaudited  financial statements of the target company, (ii) the latest draft acquisition or merger agreement and (iii) to  the extent prepared, a quality of earnings analysis in respect of such Acquisition Transaction or Investment;  provided that to the extent any such information or materials under clauses (i), (ii) or (iii) is subject to  confidentiality restrictions preventing disclosure thereof to the Administrative Agent or the Lenders, such  information or materials (or any part thereof) shall only be required to be delivered to the Administrative  Agent and made available to any Lender to the extent that the Administrative Agent and each such Lender  has executed a customary non-disclosure agreement with the target company with respect to such  information or materials, and  (g) the Board of Directors of the target company shall not be contesting such Acquisition  Transaction or Investment.  “Permitted ECF Recalculation Considerations” has the meaning assigned to such term in Section  2.11(d).  “Permitted Encumbrances” means:   (a) Liens for taxes, assessments or other governmental charges that are not delinquent for a  period of more than 30 days or that are being contested in good faith and by appropriate proceedings  diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable  





 






64  Person in accordance with GAAP, in each case, the nonpayment of which could not reasonably be expected  to result in a Material Adverse Effect;  (b) Liens imposed by statutory or common law, such as landlords’ carriers’, warehousemen’s,  mechanics’, materialmen’s, repairmen’s or construction contractors’ Liens and other similar Liens, arising  in the ordinary course of business that secure amounts not overdue for a period of more than 30 days or, if  more than 30 days overdue, are unfiled and no other action has been taken to enforce such Liens or that are  being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves  with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, in  each case so long as such Liens could not reasonably be expected to individually or in the aggregate have  a Material Adverse Effect;  (c) (i) Liens incurred, pledges or deposits made in the ordinary course of business in  connection with workers’ compensation, payroll taxes, unemployment insurance and other social security  legislation, (ii) pledges or deposits made in the ordinary course of business securing liability for  reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank  guarantees or similar instruments for the benefit of) insurance carriers providing property, casualty or  liability insurance to the Borrower or any Restricted Subsidiary or otherwise supporting the payment of  items of the type set forth in the foregoing clause (i) or (iii) deposit arrangements in the ordinary course of  business under which software or source code is placed in escrow with customers or a third party agent for  the benefit of customers on a non-exclusive basis;  (d) Liens incurred or deposits made to secure the performance of tenders, bids, trade contracts  (other than for the payment of Indebtedness), governmental contracts and leases (other than Financing  Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance bonds,  bankers acceptance facilities and other obligations of a like nature (including those to secure health, safety  and environmental obligations) and obligations in respect of letters of credit, bank guarantees or similar  instruments that have been posted to support the same, in each case incurred in the ordinary course of  business or consistent with past practices;  (e) easements, rights-of-way, restrictions, covenants, conditions, encroachments, protrusions,  zoning restrictions and other similar encumbrances, matters that are or would be reflected on a survey of  any real property, irregularities of title, title defects affecting real property that, in the aggregate, do not  materially interfere with the ordinary conduct of the business of the Borrower and the Restricted  Subsidiaries, taken as a whole, and any exception on the Mortgaged Policies issued to the Collateral Agent  in connection with the Mortgaged Property;  (f) (i) Liens securing, or otherwise arising from, judgments, awards attachments and/or  decrees and notices of lis pendens and associated rights relating to litigation being contested in good faith  not constituting an Event of Default under Section 7.01(j) and (ii) any pledge and/or deposit securing any  settlement of litigation;  (g) Liens on goods the purchase price of which is financed by a documentary letter of credit  issued for the account of the Borrower or any of the Restricted Subsidiaries or Liens on bills of lading,  drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements  relating to letters of credit, bank guarantees and other similar instruments; provided that such Lien secures  only the obligations of the Borrower or such Restricted Subsidiaries in respect of such letter of credit, bank  guarantee or other similar instrument to the extent such obligations are permitted by Section 6.01;  (h) rights of setoff, banker’s lien, netting agreements and other Liens arising by operation of  law or by of the terms of documents of banks or other financial institutions in relation to the maintenance  





 






65  of administration of deposit accounts, securities accounts or cash management arrangements or in  connection with the issuance of letters of credit, bank guarantees or other similar instruments;   (i) Liens arising from precautionary Uniform Commercial Code financing statements or any  similar filings made in respect of operating leases or consignment or bailee arrangements entered into by  the Borrower or any of the Restricted Subsidiaries;  (j) Liens given to a public utility or any municipality or Governmental Authority when  required by such utility or other authority in connection with the ordinary conduct of the business of  Holdings, the Borrower or any Restricted Subsidiary; provided that such Liens do not and could not  reasonably be expected to have a Material Adverse Effect;   (k) reservations, limitations, provisos and conditions expressed in any original grant from any  Governmental Authority or other grant of real or immovable property or interests therein; and  (l) rights of recapture of unused real property (other than any Mortgaged Property) in favor of  the seller of such property set forth in customary purchase agreements and related arrangements with any  Governmental Authority.  “Permitted Equal Priority Refinancing Debt” means any secured Indebtedness incurred by the  Borrower or any other Loan Party in the form of one or more series of senior secured notes, bonds or  debentures or senior secured loans; provided that (i) such Indebtedness is secured by Liens on the Collateral  that are (or are intended to) rank on an equal priority basis (but without regard to control of remedies) with  the Liens securing the Secured Obligations, (ii) such Indebtedness constitutes Credit Agreement  Refinancing Indebtedness and (iii) a Senior Representative acting on behalf of the holders of such  Indebtedness shall have become party to the relevant Intercreditor Agreements.  Permitted Equal Priority  Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.  “Permitted Holder” means each of (a) the Investors, (b) the Management Investors and (c) other  than for purposes of determining the “Permitted Holders” for purposes of clause (b) of the definition of  “Change in Control”, any group (within the meaning of Section 13(d)(3) of the Exchange Act (or any  successor provision)) the members of which include any of the Permitted Holders specified in clauses (a)  or (b) above (a “Permitted Holder Group”); provided that, in the case of any Permitted Holder Group, the  Permitted Holders specified in clauses (a) or (b) above are the beneficial owners, directly or indirectly, of  Equity Interests having more than 50.0% of the total voting power of the Voting Stock of Holdings (or, for  the avoidance of doubt, any New Holdings or Successor Holdings) or any Parent Entity held by such  Permitted Holder Group. “Permitted Holder Group” has the meaning assigned to such term in the definition  of “Permitted Holder.”  “Permitted Initial Revolving Credit Borrowing Purposes” means one or more Borrowings of  Revolving Loans equal to the sum of (a) an amount in order to fund any working capital requirements of  Holdings, the Borrower and their respective Subsidiaries (including Merger Sub and its respective  Subsidiaries) on the Effective Date, (b) an amount not to exceed $5,000,000 to pay the Merger  Consideration, the Effective Date Refinancing and/or the Transaction Costs plus (c) an amount sufficient  to cash collateralize letters of credit outstanding immediately prior to the Effective Date under the Existing  Credit Facility.  “Permitted Junior Priority Refinancing Debt” means any secured Indebtedness incurred by the  Borrower or any other Loan Party in the form of one or more series of junior lien secured notes, bonds or  debentures or junior lien secured loans; provided that (i) such Indebtedness is secured by Liens on the  Collateral that rank (or are intended to) rank junior to the Liens on the Collateral securing the Secured  





 






66  Obligations, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and (iii) a  Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the  relevant Intercreditor Agreements.  Permitted Junior Priority Refinancing Debt will include any Registered  Equivalent Notes issued in exchange therefor.  “Permitted Receivables Financing” means a securitization or other similar financing (including any  factoring program) of Permitted Receivables Financing Assets that is non-recourse to Holdings, the  Borrower and the Restricted Subsidiaries other than a Receivables Subsidiary (except for customary  representations, warranties, covenants and indemnities and other customary forms of support, in each case  made in connection with such facilities), all sales or contribution of Permitted Receivables Financing Assets  and related assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other  Person are made at fair market value (as determined in good faith by the Borrower), and the financing terms,  covenants, termination events and other provisions of which are on market terms (as determined in good  faith by the Borrower) but may include Standard Securitization Undertakings, providing for the sale,  conveyance, or contribution to capital of Permitted Receivables Financing Assets by Participating  Receivables Grantors in transactions purporting to be sales of Permitted Receivables Financing Assets to  either (a) a Person that is not Holdings, the Borrower and the Restricted Subsidiaries or (b) a Receivables  Subsidiary that in turn funds such purchase by the direct or indirect sale, transfer, conveyance, pledge, or  grant of participation or other interest in such Receivables Facility Assets to a Person that is not Holdings,  the Borrower and the Restricted Subsidiaries.  “Permitted Receivables Financing Assets” means (a) any accounts receivable, loan receivables,  mortgage receivables, receivables or loans relating to the financing of insurance or healthcare premiums or  relating to policies sold on behalf of an insurance carrier, royalty, patent or other revenue streams and other  rights to payment or related assets and the proceeds thereof and (b) all assets securing or related to any such  receivable or asset, all contracts and contract rights, guarantees or other obligations in respect of any such  receivable or asset, lockbox accounts and records with respect to any such receivable or assets and any  other assets (including inventory and proceeds thereof) customarily transferred (or in respect of which  security interests are customarily granted) together with receivables or assets in connection with a  securitization, factoring or receivables financing or sale transaction.  “Permitted Refinancing” means, with respect to any Indebtedness (the “Refinanced Indebtedness”),  the incurrence of any Indebtedness in exchange for or as a replacement of (including by entering into  alternative financing arrangements in respect of such exchange or replacement (in whole or in part), by  adding or replacing lenders, creditors, agents, borrowers and/or guarantors, or, after the original instrument  giving rise to such Indebtedness has been terminated, by entering into any credit agreement, loan agreement,  note purchase agreement, indenture or other agreement), or the net proceeds of which are to be used for the  purpose of any modification, refinancing, refunding, replacing, redeeming, repurchasing, defeasing,  acquiring, amending, supplementing, restructuring, repaying, prepaying, retiring, extinguishing, renewal or  extension of such Indebtedness (collectively, to “Refinance” or a “Refinancing” or “Refinanced”); provided  that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount  (or accreted value, if applicable) of the Refinanced Indebtedness except (i) by an amount equal to unpaid  accrued interest, dividend and premium (including tender premiums) thereon plus defeasance costs,  underwriting discounts, other amounts paid, and fees, commissions and expenses (including upfront fees  or similar fees, original issue discount or initial yield payments) incurred, in connection with such  Refinancing, (ii) by an amount equal to any existing revolving commitments unutilized thereunder to the  extent that the portion of any existing and unutilized revolving commitment being refinanced was permitted  to be drawn under Section 6.01 immediately prior to such refinancing (other than by reference to a Permitted  Refinancing) and such drawing shall be deemed to have been made and (iii) to the extent such excess  amount is otherwise permitted to be incurred under Section 6.01, (b) other than with respect to a Permitted  Refinancing in respect of Indebtedness permitted pursuant to Section 6.01(a)(v) and (a)(xiv) (other than in  





 






67  respect of Indebtedness for borrowed money), Indebtedness resulting from such Refinancing that has a final  maturity date equal to or later than the earlier of the final maturity date of the Refinanced Debt and the  Latest Maturity Date, and shall have a Weighted Average Life to Maturity equal to or greater than the  Weighted Average Life to Maturity of the Refinanced Indebtedness; provided that the foregoing  requirements of this clause (b) shall not apply to the extent such Indebtedness constitutes a customary bridge  facility, so long as the long-term Indebtedness into which any such customary bridge facility is to be  converted or exchanged satisfies the requirements of this clause (b) and such conversion or exchange is  subject only to conditions customary for similar conversions or exchanges or if such Indebtedness is subject  to Customary Escrow Provisions, (c) if the Refinanced Indebtedness is subordinated in right of payment to  the Loan Document Obligations, Indebtedness resulting from such Refinancing is subordinated in right of  payment to the Loan Document Obligations on terms at least as favorable to the Lenders as those contained  in the documentation governing the Refinanced Indebtedness, (d) no Loan Party that was not an obligor  with respect to the Refinanced Indebtedness shall be an obligor under the Permitted Refinancing (except  that any Loan Party may be added as an additional direct or contingent obligor in respect of such Refinanced  Indebtedness) and if the Refinanced Indebtedness was (or was required to be) subject to an Intercreditor  Agreement, the holders of such Permitted Refinancing (if such Indebtedness is secured) or their authorized  representative on their behalf, shall become party to such or a similar Intercreditor Agreement providing  for the same (or lesser) lien priority and (e) to the extent the Refinanced Indebtedness was secured by a  Lien on the Collateral, no Lien on the Collateral securing the Indebtedness resulting from such Refinancing  shall be more senior in priority relative to the Lien on the Collateral that secured the Refinanced  Indebtedness and to the extent the Refinanced Indebtedness is unsecured, the Indebtedness resulting from  such Refinancing shall be unsecured except to the extent otherwise permitted pursuant to Section 6.02.  For  the avoidance of doubt, it is understood and agreed that a Permitted Refinancing includes successive  Permitted Refinancings of the same Indebtedness.   “Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by the Borrower  or any other Loan Party in the form of one or more series of senior unsecured notes, bonds or debentures  or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and  (ii) such Indebtedness is not secured by any Lien on any property or assets of Holdings, the Borrower or  any Restricted Subsidiary.  Permitted Unsecured Refinancing Debt will include any Registered Equivalent  Notes issued in exchange therefor.  “Person” means any natural person, corporation, limited liability company, trust, Joint Venture,  association, company, partnership, Governmental Authority or other entity.  “Plan” means any “employee pension benefit plan” as defined in Section 3(2) of ERISA (other than  a Multiemployer Plan) which is subject to the provisions of Title IV of ERISA or Section 412 of the Code  or Section 302 of ERISA, and in respect of which a Loan Party or any ERISA Affiliate is (or, if such plan  were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in  Section 3(5) of ERISA.  “Planned Expenditures” has the meaning assigned to such term in clause (x) of the definition of  “Excess Cash Flow.”  “Platform” has the meaning assigned to such term in Section 5.01(g).  “Prepayment Date” means the date that any prepayment occurs pursuant to the terms of this  Agreement in a manner described in clause (y) to the proviso to Section 2.11(a).  “Prepayment Event” means:  





 






68  (a) any sale, transfer or other Disposition of any property or asset of the Borrower or any  Restricted Subsidiary pursuant to Section 6.05(i), Section 6.05(j), Section 6.05(m), Section 6.05(n) or  Section 6.05(p) or the occurrence of any other Casualty Event (or series of related Dispositions or Casualty  Events) resulting in Net Proceeds exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate  in any fiscal year (each of the foregoing, a “Disposition/Casualty Prepayment Event”); provided, that, for  the avoidance of doubt, only Net Proceeds in excess of such amounts shall be subject to the mandatory  prepayment provisions set forth in Section 2.11(c) and no Prepayment Event shall be deemed to have  occurred in any fiscal year until the Net Proceeds received during such fiscal year exceed $2,500,000; or  (b) the incurrence by the Borrower or any Restricted Subsidiary of any Indebtedness consisting  of (i) any Credit Agreement Refinancing Indebtedness, (ii) any Incremental Refinancing Facility, (iii) any  Permitted Receivables Financing permitted pursuant to Section 6.01(a)(viii) or Section 6.05(g)(B), (iv) any  securitization, receivables facility or other similar financing (including any factoring program) or sale of  receivables, insurance or healthcare premiums or relating to policies sold on behalf of an insurance carrier,  royalty, patent or other revenue streams and other rights to payment or related assets that are not permitted  by Section 6.01(a)(viii) and (v) unless permitted by the Required Lenders pursuant to Section 9.02, any  other Indebtedness not permitted by Section 6.01 (such incurrence, a “Specified Debt Incurrence  Prepayment Event”).  “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate”  in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate  published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest  Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted  therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board  (as determined by the Administrative Agent).  “Pro Forma Entity” means any Acquired Entity or Business or any Converted Restricted  Subsidiary.  “Pro Forma Financial Statements” means the pro forma consolidated balance sheet and related pro  forma consolidated statement of operations, of the Borrower, as of, and for the twelve-month period ending  on, the last day of the most recently completed four-fiscal quarter period ended at least 60 days prior to the  Effective Date (or 120 days prior to the Effective Date in the case such four fiscal quarter period is the end  of the Target’s fiscal year), prepared after giving effect to the Transactions as if the Transactions had  occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case  of such income statements), which need not be prepared in compliance with Regulation S-X of the  Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments  of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification  805, Business Combinations (formerly SFAS 141R)), tax adjustments, deferred taxes or other similar pro  forma adjustments.  “Proceeding” has the meaning assigned to such term in Section 9.03(b).  “Proposed Change” has the meaning assigned to such term in Section 9.02(c).  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as  any such exemption may be amended from time to time.   “Public Company Costs” has the meaning assigned to such term in the definition of “Consolidated  EBITDA”.  





 






69  “Public Lender” has the meaning assigned to such term in Section 5.01.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” has the meaning assigned to such term in Section 9.22.  “QofE Report” has the meaning assigned to such term in clause (a)(xix) of the definition of  “Consolidated EBITDA.”  “Qualifying Bridge Facility” has the meaning assigned to such term in the definition of “Required  Additional Debt Terms”.  “Qualified Equity Interests” means Equity Interests other than Disqualified Equity Interests.  “Quotation Day” means for any Interest Period, the day two Business Days prior to the first day of  such Interest Period.  “Ratio Incurrence” has the meaning assigned to such term in Section 1.11(d).  “Ratio Indebtedness” has the meaning assigned to such term in Section 6.01(a)(xix)(A).  “Receivables Subsidiary” means any Special Purpose Entity established in connection with a  Permitted Receivables Financing and any other subsidiary (other than any Loan Party) involved in a  Permitted Receivables Financing which is not permitted by the terms of such Permitted Receivables  Financing to guarantee the Secured Obligations or provide Collateral.  “Refinance” or a “Refinancing” or “Refinanced” has the meaning assigned to such term in the  definition of “Permitted Refinancing”.  “Refinanced Indebtedness” has the meaning assigned to such term in the definition of “Permitted  Refinancing”.  “Refinanced Credit Agreement Debt” has the meaning assigned to such term in the definition of  “Credit Agreement Refinancing Indebtedness.”  “Refunding Equity Interests” has the meaning assigned to such term in Section 6.08(a)(iv).  “Register” has the meaning assigned to such term in Section 9.04(b)(iv).  “Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A  or other private placement transaction under the Securities Act, substantially identical notes (having  substantially the same Guarantees) issued in a Dollar-for-Dollar exchange therefor pursuant to an exchange  offer registered with the SEC.  “Regulation S-X” means Regulation S-X under the Securities Act.  “Rejection Notice” has the meaning assigned to such term in Section 2.11(e)(ii).  “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the  officers, directors, employees, agents and advisors and other representatives of such Person and of each of  such Person’s Affiliates and successors and permitted assigns.  





 






70  “Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit,  disposal, discharge, dispersal, leaching or migration into the environment (including ambient air, surface  water, groundwater, land surface or subsurface strata and including the environment within any building or  other structure).  “Removal Effective Date” has the meaning assigned to such term in Article VIII.  “Replacement Revolving Commitment” has the meaning assigned to such term in Section 2.20(a).  “Replacement Revolving Loan” means any loan made to the Borrower under a Class of  Replacement Revolving Commitments.  “Replacement Revolving Facility” means each Class of Replacement Revolving Commitments  made pursuant to Section 2.20(a).  “Representative” has the meaning assigned to such term in Section 9.12.  “Repricing Transaction” means (a) the incurrence by any Loan Party of any Indebtedness in the  form of term loans secured by Liens on the Collateral that rank on an equal priority basis (but without  giving effect to control of remedies) with the liens on the Collateral securing the Initial Term Loans, 2020  Incremental Term Loans and/or the 2021-2 Incremental Term Loans (i) having an Effective Yield for the  respective Type of such Indebtedness that is less than (and not by virtue of any fluctuation in any “base”  rate) the Effective Yield for the Initial Term Loans, the 2020 Incremental Term Loans and/or the 2021-2  Incremental Term Loans, as applicable, and (ii) the proceeds of which are used to prepay (or, in the case of  a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of the Initial Term  Loans, the 2020 Incremental Term Loans and/or the 2021-2 Incremental Term Loans or (b) any amendment  (or any mandatory assignment in connection with any such amendment) resulting in the effective reduction  in the Effective Yield for the Initial Term Loans, the 2020 Incremental Term Loans and/or the 2021-2  Incremental Term Loans, as applicable.  Any determination by the Administrative Agent with respect to  whether a Repricing Transaction shall have occurred shall be conclusive and binding on all Lenders holding  the Initial Term Loans, the 2020 Incremental Term Loans and the 2021-2 Incremental Term Loans.  “Required Additional Debt Terms” means, with respect to any Ratio Indebtedness, Incremental  Equivalent Debt and Acquisition Debt, (a) such Indebtedness does not mature earlier than the date that is  91 days after the Latest Maturity Date or have a Weighted Average Life to Maturity less than the greatest  Weighted Average Life to Maturity of the then-existing Term Loans outstanding at the time of incurrence  of such Indebtedness (other than (1)  in the case of a customary bridge facility, so long as such customary  bridge facility does not have a tenor longer than one year and is convertible or exchangeable into long-term  indebtedness and the long-term Indebtedness into which such customary bridge facility is to be converted  or exchanged satisfies the requirements of this clause (a) and such conversion or exchange is subject only  to conditions customary for similar conversions or exchanges (a “Qualifying Bridge Facility”) and (2)  Indebtedness that is subject to Customary Escrow Provisions), (b) except with respect to any Qualifying  Bridge Facility (prior to any conversion or exchange into long-term Indebtedness) and Indebtedness that is  subject to the Customary Escrow Provisions, the terms of such Indebtedness in respect thereof do not  provide for any mandatory prepayments, mandatory redemptions, mandatory commitment reductions,  mandatory offers to purchase or mandatory sinking fund obligations prior to the Latest Maturity Date, other  than customary prepayments, commitment reductions, repurchases, redemptions, defeasances, acquisitions  or satisfactions and discharges, or offers to prepay, reduce, redeem, repurchase, defease, acquire or satisfy  and discharge, in each case upon, a change of control, asset sale event or casualty, eminent domain or  condemnation event, or on account of the accumulation of excess cash flow (in the case of loans or  commitments), AHYDO Catch Up Payments and customary acceleration rights upon an event of default,  





 






71  (c) except for any of the following that are applicable only to periods following the Latest Maturity Date,  the covenants, events of default and other terms for such Indebtedness or commitments (excluding, for the  avoidance of doubt, interest rates (including through fixed interest rates), interest rate margins, rate floors,  fees, maturity, funding discounts, original issue discounts, currency type and denomination, and redemption  or prepayment terms and premiums), when taken as a whole, are determined by the Borrower to not be  materially more restrictive on Holdings, the Borrower and the Restricted Subsidiaries than the terms of this  Agreement, when taken as a whole (provided that, if the documentation governing such Indebtedness or  commitments contains any covenant or provision that is not included in this Agreement at such time, the  Administrative Agent shall have been given prompt written notice thereof and this Agreement shall have  been amended to include such covenant or provision for the benefit of each Credit Facility (provided,  however, that, if (x) the documentation governing such Indebtedness that includes a financial maintenance  covenant consists of a revolving credit facility (whether or not the documentation therefor includes any  other facilities) and (y) such financial maintenance covenant is a “springing” financial maintenance  covenant for the benefit of such revolving credit facility or a covenant only applicable to, or for the benefit  of, a revolving credit facility, then such Indebtedness or commitments shall not be deemed “more  restrictive” with respect to any Term Facility solely as a result of such financial maintenance covenant  benefiting only such revolving credit facilities); provided that a certificate of a Responsible Officer of the  Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such  Indebtedness or the providing of such commitments, together with a reasonably detailed description of the  material terms and conditions of such Indebtedness or commitments or drafts of the documentation relating  thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the  foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing  requirement unless the Administrative Agent notifies the Borrower within such five Business Day period  that it disagrees with such determination (including a reasonable description of the basis upon which it  disagrees), (d) to the extent such Indebtedness is secured by any of the Collateral, such Indebtedness shall  not be secured by any assets of a Loan Party other than the Collateral securing the Secured Obligations and  shall be subject to the relevant Intercreditor Agreements and (e) to the extent such Indebtedness is incurred  or guaranteed by any Loan Party, such Indebtedness shall not be guaranteed by any Restricted Subsidiary  that is not a Loan Party (except to the extent such Indebtedness that is subject to the Required Additional  Debt Terms is expressly permitted to be incurred by any Restricted Subsidiary that is not a Loan Party  under Section 6.01(xix) or Section 6.01(xxvi)).   “Required Lenders” means, at any time, Lenders having or holding more than 50.0% of the  aggregate Revolving Exposures, outstanding Term Loans and unused Commitments (or, if the Replacement  Revolving Commitment or Other Revolving Commitment of any Class has been terminated, the outstanding  Replacement Revolving Loans or Other Revolving Loans of such Class outstanding at such time) at such  time; provided that  (a) whenever there are one or more Defaulting Lenders, the total outstanding Term  Loans, Commitments, Revolving Exposures and unused Revolving Commitments of each Defaulting  Lender shall be excluded for purposes of making a determination of Required Lenders and (b) when there  are four (4) or fewer Lenders at any such time (it being understood that a single Lender for such purposes  shall be deemed to include all Affiliates and Approved Funds of a Lender who are Lenders under this  Agreement), the Required Lenders shall constitute no fewer than two Lenders (but only including any such  Lender that holds at least 15.0% of the aggregate Revolving Exposures, outstanding Term Loans and unused  Commitments (or, if the Replacement Revolving Commitment or Other Revolving Commitment of any  Class has been terminated, the outstanding Replacement Revolving Loans or Other Revolving Loans of  such Class outstanding at such time) at such time) at such time.  “Required Revolving Lenders” means, at any time, Revolving Lenders having Revolving  Exposures and unused Revolving Commitments representing more than 50.0% of the aggregate Revolving  Exposures and unused Revolving Commitments at such time; provided that (a) whenever there are one or  more Defaulting Lenders, the total outstanding Revolving Exposures and unused Revolving Commitments  





 






72  of each Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving  Lenders and (b) when there are four (4) or fewer Revolving Lenders at any such time (it being understood  that a single Revolving Lender for such purposes shall be deemed to include all Affiliates and Approved  Funds of a Revolving Lender who are Revolving Lenders under this Agreement), the Required Revolving  Lenders shall constitute no fewer than two Revolving Lenders (but only including any such Revolving  Lender that holds at least 15.0% of the aggregate Revolving Exposures (or, if the Revolving Commitment  or Other Revolving Commitment of any Class has been terminated, the outstanding Revolving Loans or  Other Revolving Loans of such Class outstanding at such time) at such time) at such time.  “Requirements of Law” means, with respect to any Person, any statutes, laws, treaties, rules,  regulations, orders, decrees, writs, injunctions or determinations of any arbitrator or court or other  Governmental Authority, in each case applicable to or binding upon such Person or any of its property or  to which such Person or any of its property is subject.  “Resignation Effective Date” has the meaning assigned to such term in Article VIII.  “Responsible Officer” means the Chairman of the Board, the President, the Chief Executive  Officer, the Chief Financial Officer, the Chief Operating Officer, the Treasurer, any Vice President, the  Assistant Treasurer, with respect to certain limited liability companies or partnerships that do not have  officers, any manager, managing member, managing director or general partner thereof, any other senior  officer of Holdings, the Borrower or any other Loan Party designated as such in writing to the  Administrative Agent by Holdings, the Borrower or any other Loan Party, as applicable, and, with respect  to any document (other than the solvency certificate) delivered on the Effective Date, the Secretary or the  Assistant Secretary of any Loan Party.  Any document delivered hereunder that is signed by a Responsible  Officer shall be conclusively presumed to have been authorized by all necessary corporate, limited liability  company, partnership and/or other action on the part of Holdings, the Borrower or any other Loan Party  and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.  “Restricted Debt Payment” has the meaning assigned to such term in Section 6.08(b).  “Restricted Debt Payment Amount” means, at any time the greater of (x) $5,000,000 and (y) 10.0%  of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to such date of  determination (measured as of such date), minus the sum of (a) the amount of Restricted Debt Payments  made by the Borrower or any Restricted Subsidiary in reliance on Section 6.08(b)(iv)(A)(i) and (b) the  amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on Section  6.04(n)(A)(iii).  “Restricted Junior Debt” has the meaning assigned to such term in Section 6.08(b).  “Restricted Payment” means any dividend or other distribution (whether in cash, securities or other  property) with respect to any Equity Interests in the Borrower (or any Parent Entity), or any payment  (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of  the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the  Borrower (or any Parent Entity), any option, warrant or other right to acquire any such Equity Interests, or  any funds set aside or otherwise reserved, directly or indirectly, for any of the foregoing purposes.  “Restricted Payment Amount” means, at any time the greater of (x) $5,000,000 and (y) 10.0% of  Consolidated Cash EBITDA for the Test Period most recently ended on or prior to such date of  determination (measured as of such date), minus the sum of (a) the amount of Restricted Payments made  by the Borrower or any Restricted Subsidiary in reliance on Section 6.08(a)(viii)(A), (b) the amount of  Restricted Debt Payments made by the Borrower or any Restricted Subsidiary in reliance on Section 6.08  





 






73  (b)(iv)(A)(ii) and (c) the amount of Investments made by the Borrower or any Restricted Subsidiary in  reliance on Section 6.04(n)(A)(ii).  “Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary.  “Retained Declined Proceeds” has the meaning assigned to such term in Section 2.11(e).  “Return” means, with respect to any Investment, any dividend, distribution, interest, fee, premium,  return of capital, repayment of principal, income, profit (from a Disposition or otherwise) and any other  amount received or realized in respect thereof.  “Revolving Availability Period” means the period from and including the Effective Date to but  excluding the earlier of the Revolving Maturity Date and the date of termination of the Revolving  Commitments.  “Revolving Commitment” means, (a) prior to the Amendment No. 5 Effective Date, the Original  Revolving Commitments as in effect at any time prior to such date and (b) on and after the Amendment  No. 5 Effective Date, the Class A Revolving Commitments and Class B Revolving Commitments. The  aggregate amount of the Revolving Commitments in effect immediately prior to the Amendment No. 5  Effective Date was $200,000,000.  The aggregate amount of the Revolving Commitments in effect on the  Amendment No. 5 Effective Date is $200,000,000.  “Revolving Credit Extension Request” has the meaning assigned to such term in Section 2.24(b).  “Revolving Credit Facility” means the Revolving Commitments and the provisions herein related  to the Revolving Loans, Swingline Loans and Letters of Credit.  “Revolving Exposure” means, with respect to any Revolving Lender at any time, the sum of  (a) such Lender’s outstanding Revolving Loans, (b) such Lender’s LC Exposure and (c) such Lender’s  Swingline Exposure at such time.  “Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving  Commitments have terminated or expired, a Lender with Revolving Exposure.  “Revolving Loan” means (a) prior to the Amendment No. 5 Effective Date, the Original Revolving  Loans and (b) on and after the Amendment No. 5 Effective Date, the Class A Revolving Loans and Class  B Revolving Loans.  “Revolving Maturity Date” means the fifth anniversary of the Effective Date.  “Rollover Investors” has the meaning specified in the recitals to this Agreement.  “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC  business, and any successor to its rating agency business.  “Sale Leaseback” means any transaction or series of related transactions pursuant to which the  Borrower or any Restricted Subsidiary (a) sells, transfers or otherwise disposes of any property, real or  personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or  leases such property or other property that it intends to use for substantially the same purpose or purposes  as the property being sold, transferred or disposed of.  





 






74  “Sanctioned Country” has the meaning assigned to such term in Section 3.17(b).  “Sanctions” means economic sanctions administered or enforced by OFAC or the U.S. Department  of State.  “SEC” means the Securities and Exchange Commission or any Governmental Authority  succeeding to any of its principal functions.  “Secured Cash Management Obligations” means, at the written election of Holdings to the  Administrative Agent, the due and punctual payment and performance of all obligations of Holdings, the  Borrower and the Restricted Subsidiaries (other than Receivables Subsidiaries) in respect of any overdraft  and related liabilities arising from treasury, depository, cash pooling arrangements and cash management  services, corporate credit and purchasing cards and related programs or any automated clearing house  transfers of funds (collectively, “Cash Management Services”) provided to Holdings, the Borrower or any  Subsidiary (whether absolute or contingent and howsoever and whenever created, arising, evidenced or  acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) that are  (a) owed to the Administrative Agent or any of its Affiliates, (b) owed on the Effective Date to a Person  that is a Lender or an Affiliate of a Lender as of the Effective Date, (c) owed to a Person that is an Agent,  a Lender or an Affiliate of an Agent or Lender at the time such obligations are incurred or (d) owed to a  Person that shall have become a Lender or an Affiliate of a Lender after such obligations are incurred.  “Secured Obligations” means (a) the Loan Document Obligations, (b) the Secured Cash  Management Obligations and (c) the Secured Swap Obligations (excluding with respect to any Guarantor,  Excluded Swap Obligations of such Guarantor).  “Secured Parties” means (a) each Lender, each Issuing Bank and the Swingline Lender, (b) the  Administrative Agent and the Collateral Agent, (c) each Person to whom any Secured Cash Management  Obligations are owed, (d) each counterparty to any Swap Agreement the obligations under which constitute  Secured Swap Obligations, (e) the beneficiaries of each indemnification obligation undertaken by any Loan  Party under any Loan Document and (f) the successors and permitted assigns of each of the foregoing.  “Secured Swap Obligations” means, at the written election of Holdings to the Administrative  Agent, the due and punctual payment and performance of all obligations of Holdings, the Borrower and the  Restricted Subsidiaries (other than Receivables Subsidiaries) under each Swap Agreement that (a) is with  a counterparty that is the Administrative Agent or any of its Affiliates, (b) is in effect on the Effective Date  with a counterparty that is a Lender, an Agent or an Affiliate of a Lender or an Agent as of the Effective  Date, (c) is entered into after the Effective Date with any counterparty that is a Lender, an Agent or an  Affiliate of a Lender or an Agent, or (d) is entered into after the Effective Date with any counterparty that  becomes a Lender, an Agent or an Affiliate of a Lender or Agent; it being agreed that, for the avoidance of  doubt, the assignment provisions of Section 9.04 and the Defaulting Lender provisions contained herein  shall not apply to a Person described in clauses (a) through (e) above in its capacity as a counterparty in  respect of a Swap Agreement or affect its status or rights as a Secured Party in respect of any Secured Swap  Obligation.  “Securities Act” means the Securities Act of 1933, as amended.  “Security Documents” means the Collateral Agreement, Mortgages and each other security  agreement or pledge agreement, including any Account Control Agreement or any Intellectual Property  security agreement executed and delivered pursuant to the Collateral and Guarantee Requirement,  Section 4.01(f), Section 5.11, Section 5.12 or Section 5.14 to secure any of the Secured Obligations.  





 






75  “Senior Representative” means, with respect to any series of Permitted Equal Priority Refinancing  Debt, Permitted Junior Priority Refinancing Debt or other Indebtedness, the trustee, administrative agent,  collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such  Indebtedness is incurred, and each of their successors in such capacities.  “Settlement” means the transfer of cash or other property with respect to any credit or debit card  charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic  payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or  funds transmitter in the ordinary course of its business.  “Settlement Asset” means any cash, receivable or other property, including a Settlement  Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made  or arranged, by such Person or an Affiliate of such Person.  “Settlement Indebtedness” means any payment or reimbursement obligation in respect of a  Settlement Payment.  “Settlement Lien” means any Lien relating to any Settlement or Settlement Indebtedness (and may  include, for the avoidance of doubt, the grant of a Lien in or other assignment of a Settlement Asset in  consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated  clearing house exposure, and similar Liens).  “Settlement Payment” means the transfer, or contractual undertaking (including by automated  clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement.  “Settlement Receivable” means any general intangible, payment intangible, or instrument  representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration  for a Settlement made or arranged, or to be made or arranged, by such Person.  “Significant Subsidiary” means any “significant subsidiary” as defined in Article 1, Rule 1-02 of  Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Effective  Date.  “Signing Date” means August 15, 2019.  “Similar Business” means (1) any business conducted by the Borrower or any Restricted Subsidiary  on the Effective Date or (2) any business or other activities that are reasonably similar, ancillary, incidental,  complementary or related to (including non-core incidental businesses acquired in connection with any  Investment permitted hereunder), or a reasonable extension, development or expansion of, the businesses  that the Borrower and its Restricted Subsidiaries conduct or propose to conduct on the Effective Date.  “Sold Entity or Business” has the meaning assigned to such term in the definition of “Consolidated  EBITDA.”  “Solvent” and “Solvency” means with respect to any Person on any date of determination, that on  such date (i) the Fair Value and the Present Fair Saleable Value of the assets of a Person exceeds such  Person’s Stated Liabilities and Identified Contingent Liability; (ii) such person does not have Unreasonably  Small Capital; and (iii) such Person can pay its Stated Liabilities and Identified Contingent Liability as they  mature.  For purposes of the foregoing, (a) “Fair Value” shall mean the amount at which the assets (both  tangible and intangible), in their entirety, of a Person would change hands between a willing buyer and a  willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the  





 






76  relevant facts, with neither being under any compulsion to act, (b) “Present Fair Salable Value” means the  amount that could be obtained by an independent willing seller from an independent willing buyer if the  assets (both tangible and intangible) of the Borrower and its Subsidiaries taken as a whole are sold on a  going concern basis with reasonable promptness in an arm’s-length transaction under present conditions  for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated  (provided that for purposes of determining Solvency on the Effective Date, this clause (b) shall be calculated  after giving effect to the consummation of the Transactions (including the execution and delivery of this  Agreement, the making of the Loans and the use of proceeds of such Loans on the Effective Date)), (c)  “Stated Liabilities” means the recorded liabilities (including contingent liabilities that would be recorded  in accordance with GAAP, consistently applied) of such Person, (d) “Identified Contingent Liabilities” shall  mean the maximum estimated amount of liabilities reasonably likely to result from pending litigation,  asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of such person;  provided that for purposes of determining Solvency on the Effective Date, this clause (d) shall be calculated  after giving effect to the consummation of the Transactions (including the execution and delivery of this  Agreement, the making of the Loans and the use of proceeds of such Loans on the Effective Date (including  all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in  Stated Liabilities pursuant to the proviso in clause (c) above)) as identified and explained in terms of their  nature and estimated magnitude and (e) “Can pay their Stated Liabilities and Identified Contingent  Liabilities as they mature” means such Person will have sufficient assets and cash flow to pay their  respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case  of contingent liabilities) otherwise become payable; provided that for purposes of determining Solvency on  the Effective Date, this clause (e) shall be calculated after giving effect to the consummation of the  Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use  of proceeds of such Loans on the Effective Date) and (f) “Do not have Unreasonably Small Capital” means  such Person will have sufficient capital to ensure that it is a going concern.  “Special Purpose Entity” means a direct or indirect subsidiary of any Loan Party, whose  organizational documents contain restrictions on its purpose and activities intended to preserve its  separateness from such Loan Party and/or one or more Subsidiaries of such Loan Party.  “Specified Debt Incurrence Prepayment Event” has the meaning assigned to such term in the  definition of “Prepayment Event”.  “Specified Equity Issuance” has the meaning assigned to such term in Section 7.02.  “Specified Existing Revolving Commitment Class” has the meaning assigned to such term in  Section 2.24(b).   “Specified Merger Agreement Representations” means the representations and warranties made by,  or with respect to, the Target and its respective subsidiaries in the Merger Agreement as are material to the  interests of the Lenders, but only to the extent that Parent or its affiliates have the right (taking into account  any applicable cure provisions) to terminate its (or their) obligations under the Merger Agreement or to  decline to consummate the acquisition of the Target (in each case, in accordance with the terms thereof) as  a result of a breach of such representations and warranties in the Merger Agreement.  “Specified Representations” means the representations and warranties set forth in Section 3.01(a)  (as it relates to organizational existence of the Loan Parties), Section 3.01(b)(ii) (with respect to the  incurrence of the Loans, the provision of the Guarantees under the Guarantee Agreement by the Loan  Parties, the granting of the security interests in the Collateral by the Loan Parties and the performance of  the obligations under the Loan Documents by the Loan Parties), Section 3.02, Section 3.03(b)(i), Section  3.08, Section 3.14, Section 3.15, Section 3.16 (as it relates to the creation, validity and perfection of the  





 






77  security interests in the Collateral on the Effective Date) and Section 3.17(a), (b)(i)(x) and (b)(ii) (in each  case, as it relates to the use of proceeds of the Loans on the Effective Date), in each case, after giving effect  to the Acquisition.  “Specified Restructuring” means any restructuring initiative, cost saving initiative or other similar  strategic initiative of Holdings, the Borrower or any of their respective Restricted Subsidiaries after the  Effective Date described in reasonable detail in a certificate of a Responsible Officer delivered by Holdings  to the Administrative Agent.  “Specified Time” means with respect to the LIBO Rate, 11:00 a.m., London time.  “Specified Transaction” means, with respect to any period, any Investment, Specified  Restructuring, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, subsidiary  designation, operating improvements, restructurings, New Project or other event that by the terms of the  Loan Documents requires “pro forma compliance” with a test or covenant hereunder or requires such test  or covenant to be calculated on a “pro forma basis” or after giving “pro forma effect” to such event.  “Sponsor” means Centerbridge Partners, L.P. and Norwest Equity Partners IX, LP, and their  respective Affiliates, funds, partnerships or other co-investment vehicles managed, advised or controlled  by the foregoing (other than Holdings and its Subsidiaries or any operating portfolio company of any of the  entities referred to above).  “SPV” has the meaning assigned to such term in Section 9.04(f).  “Standard Securitization Undertakings” means all representations, warranties, covenants and  indemnities (including repurchase obligations in the event of a breach of representation and warranty) by  any Loan Party or Subsidiary thereof that the Borrower has determined in good faith to be customary in  connection with a Permitted Receivables Financing, including, without limitation, those relating to the  servicing of the assets of a Receivables Subsidiary.  “Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as a decimal),  the numerator of which is the number one and the denominator of which is the number one minus the  aggregate of the maximum reserve, liquid asset or similar percentages (including any marginal, special,  emergency or supplemental reserves) expressed as a decimal established by any Governmental Authority  of the United States or of the jurisdiction of such currency or any jurisdiction in which Loans in such  currency are made to which banks in such jurisdiction are subject for any category of deposits or liabilities  customarily used to fund loans in such currency or by reference to which interest rates applicable to Loans  in such currency are determined.  Such reserve, liquid asset or similar percentages shall include those  imposed pursuant to Regulation D of the Board of Governors, and if any Lender is required to comply  therewith, the requirements of The Bank of England and/or the Prudential Regulation Authority (or any  authority that replaces any of the functions thereof) or the requirements of the European Central Bank.   Eurocurrency Loans shall be deemed to be subject to such reserve, liquid asset or similar requirements  without benefit of or credit for proration, exemptions or offsets that may be available from time to time to  any Lender under Regulation D or any other applicable law, rule or regulation.  The Statutory Reserve Rate  shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.  “Sterling” and “£” mean the lawful currency of the United Kingdom.  “Subject Interest Period” shall have the meaning provided in Section Error! Reference source not  found..  





 






78  “Subordinated Indebtedness” means any debt for borrowed money that is contractually  subordinated in right of payment to the Loan Document Obligations.  “subsidiary” of any Person means and includes (a) any corporation more than 50.0% of whose  stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the  directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such  corporation shall have or might have voting power by reason of the happening of any contingency) is at the  time owned by such Person directly or indirectly through Subsidiaries and (b) any limited liability company,  partnership, association, Joint Venture or other entity in which such Person directly or indirectly through  Subsidiaries has more than a 50.0% equity interest at the time.  “Subsidiary” means any subsidiary of Holdings.  “Subsidiary Loan Party” means (a) each Restricted Subsidiary (other than the Borrower) that is a  party to the Guarantee Agreement and (b) any other Restricted Subsidiary of the Borrower that may be  designated by the Borrower (by way of delivering to the Collateral Agent a supplement to the Collateral  Agreement and a supplement to the Guarantee Agreement, in each case, duly executed by such Subsidiary)  in its sole discretion from time to time to be a guarantor in respect of the Secured Obligations, whereupon  such Subsidiary shall be obligated to comply with the other requirements of Section 5.11 as if it were newly  acquired.  “Successor Benchmark Rate” has the meaning assigned to such term in Section 2.14(b).   “Successor Borrower” has the meaning assigned to such term in Section 6.03(d).  “Successor Holdings” has the meaning assigned to such term in Section 6.06(o).  “Supported QFC” has the meaning assigned to such term in Section 9.22.  “Suspension Period” means the period commencing on the Amendment No. 7 Effective Date  through and including the date on which (a) the Borrower shall have delivered to the Administrative Agent  for two consecutive Test Periods the quarterly and/or annual financial statements required by Section  5.01(a) and 5.01(b), respectively, together with the accompanying Compliance Certificates required by  Section 5.01(d), for such Test Periods, which Compliance Certificates shall demonstrate that the Total Net  Cash Leverage Ratios for each such Test Period does not exceed 4.00:1.00 and (b) no Default or Event of  Default has occurred and is continuing.  “Swap” means any agreement, contract, or transaction that constitutes a “swap” within the meaning  of section 1a(47) of the Commodity Exchange Act.  “Swap Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions, forward rate transactions, commodity swaps, commodity options, forward commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward bond or forward bond price or forward bond index transactions, interest rate options, forward  foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  





 






79  agreement (any such master agreement, together with any related schedules, a “Master Agreement”),  including any such obligations or liabilities under any Master Agreement.  “Swap Obligation” means, with respect to any Person, any obligation to pay or perform under any  Swap.  “Swap Termination Value” means, in respect of any one or more Swap Agreements, after taking  into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a)  for any date on or after the date such Swap Agreements have been closed out and termination value(s)  determined in accordance therewith, such termination value(s), and (b) for any date prior to the date  referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap  Agreements, as determined based upon one or more mid-market or other readily available quotations  provided by any recognized dealer in such Swap Agreements (which may include a Lender or any Affiliate  of a Lender).  “Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans  outstanding at such time.  The Swingline Exposure of any Revolving Lender at any time shall be its  Applicable Percentage of the aggregate Swingline Exposure at such time.  “Swingline Lender” means (a) Owl Rock Capital Corporation, in its capacity as lender of Swingline  Loans hereunder and (b) each Revolving Lender that shall have become a Swingline Lender hereunder as  provided in Section 2.04(d) (other than any Person that shall have ceased to be a Swingline Lender as  provided in Section 2.04(e)), each in its capacity as a lender of Swingline Loans hereunder.  “Swingline Loan” means a Loan made pursuant to Section 2.04.  “Swingline Sublimit” means $5,000,000.  “Target” has the meaning specified in the recitals to this Agreement.  “Tax Restructuring” means any reorganizations and other activities related to tax planning and tax  reorganization (as determined by the Borrower in good faith) entered into after the Effective Date so long  as such Tax Restructuring does not impair the Guarantee or the security interests of the Secured Parties in  any material respect and is otherwise not adverse to the Lenders in any material respect and after giving  effect to such Tax Restructuring, Holdings and its Restricted Subsidiaries otherwise comply with Section  5.12.  “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges, fees,  assessments or withholdings (including backup withholdings) imposed by any Governmental Authority,  including any interest, additions to tax or penalties applicable thereto.  “Term Facility” means the term loan facilities represented by the Term Loans (including, for the  avoidance of doubt, the 2020 Incremental Term Loan Facility, the 2021 Incremental Term Loan Facility  and the 2021-2 Incremental Term Loan Facility).  “Term Lenders” means each Person that is, or shall have become, a party hereto or to an  Incremental Facility, in each case in respect of any Term Loans.  “Term Loan Extension Request” has the meaning assigned to such term in Section 2.24(a).  





 






80  “Term Loans” means the Initial Term Loans, the 2020 Incremental Term Loans, the 2021  Incremental Term Loans, the 2021-2 Incremental Term Loans, any other Incremental Term Loans or any  Other Term Loans, as applicable.  “Term Maturity Date” means (a) in the case of the Initial Term Loans, the Initial Term Maturity  Date, (b) in the case of the 2020 Incremental Term Loans, the 2020 Incremental Term Loan Maturity Date  and, (c) in the case of the 2021 Incremental Term Loans, the 2021 Incremental Term Loan Maturity Date,  (d) in the case of the 2021-2 Incremental Term Loans, the 2021-2 Incremental Term Loan Maturity Date  and (e) in the case of any other Incremental Term Loan or any Other Term Loan, the date set forth in the  applicable documentation in respect thereof.  “Termination Date” means the date on which (a) all Commitments shall have been terminated,  (b) all Loan Document Obligations (other than in respect of contingent indemnification and expense  reimbursement claims not then due) shall have been paid in full and (c) all Letters of Credit (other than  those that have been Cash Collateralized or back-stopped by a letter of credit or otherwise in a manner  reasonably satisfactory to the relevant Issuing Bank) shall have been cancelled, terminated or have expired  and all amounts drawn or paid thereunder shall have been reimbursed in full.  “Test Period” means, at any date of determination, the most recently completed four consecutive  fiscal quarters of the Borrower ending on or prior to such date for which financial statements have been (or  were required to have been) delivered to the Administrative Agent pursuant to Section 5.01(a) or, in the  case of the first, second and third fiscal quarters, Section 5.01(b); provided that prior to the first date  financial statements have been (or were required to have been) delivered pursuant to Section 5.01(a) or  5.01(b), the Test Period in effect shall be the period of four consecutive fiscal quarters of the Borrower  ended June 30, 2019.  “Total Class A Revolving Commitment” means, on any date, the sum of the Class A Revolving  Commitments on such date of all the Class A Revolving Lenders.  “Total Class B Revolving Commitment” means, on any date, the sum of the Class B Revolving  Commitments on such date of all the Class B Revolving Lenders.  “Total Revolving Commitment” shall mean, on any date, the sum of the Total Class A Revolving  Commitment and Total Class B Revolving Commitment.  “Total Net Cash Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated  Total Net Debt as of the last day of the Test Period most recently ended on or prior to such date of  determination to (b) Consolidated Cash EBITDA for the Test Period as of such date.  “Total Net Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Total  Net Debt as of the last day of the Test Period most recently ended on or prior to such date of determination  to (b) Consolidated EBITDA for such Test Period.  “Transactions” means, collectively, (a) the funding of the Initial Term Loans on the Effective Date,  the funding of any Revolving Loans on the Effective Date, the proceeds of which are applied in accordance  with Section 5.10 hereof, and the consummation of the other transactions contemplated by this Agreement,  (b) the Effective Date Refinancing, (c) the Acquisition, the Merger and other related transactions  contemplated by the Merger Agreement, (d) the Equity Contribution, (e) the consummation of any other  transactions in connection with the foregoing and (f) the payment of the fees and expenses incurred in  connection with any of the foregoing (including the Transaction Costs).  





 






81  “Transaction Costs” means any fees, expenses and other transaction costs incurred or paid by the  Investors, any Parent Entity, Initial Holdings, the Borrower or any of their Subsidiaries or Affiliates in  connection with the Transactions, this Agreement and the other Loan Documents and the transactions  contemplated hereby and thereby.  “Treasury Rate” means, as of any date of notice of prepayment, the yield to maturity as of the date  of such notice of U.S. Treasury securities with a constant maturity (as compiled and published in the most  recent statistical release designated as “H.15” under the caption “Treasury constant maturities” or any  successor publication which is published at least weekly by the Board of Governors of the Federal Reserve  System (or companion online data resource published by the Board of Governors of the federal reserve  system) and which establishes yields on actively traded United States Treasury securities adjusted to  constant maturity that has become publicly available at least two Business Days prior to the date of such  notice (or, if such Statistical Release is no longer published, any publicly available source of similar market  data)) most nearly equal to the period from the applicable Prepayment Date to the date that is two years  after the 2020 Incremental Closing Date; provided, however, that if the period from the applicable  Prepayment Date to the date that is two years after the 2020 Incremental Closing Date is less than one year,  the weekly average yield on actively traded U.S. Treasury securities adjusted to a constant maturity of one  year will be used.  “Type,” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on  such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO  Rate or the Alternate Base Rate.  “UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect from  time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory  provisions of law, any or all of the perfection or priority of the Collateral Agent’s security interest in any  item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a U.S.  jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code  as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such  perfection or priority and for purposes of definitions relating to such provisions.  “Unaudited Financials” means the unaudited consolidated balance sheet of the Target and its  consolidated subsidiaries as at the end of, and the related unaudited consolidated statement of operations  and unaudited consolidated statement of comprehensive income, unaudited consolidated statement of  changes in Redeemable Class B Units and members’ equity and consolidated unaudited statement of cash  flows, in each case, for, the six-month period (other than the fourth fiscal quarter period of any fiscal year)  ended June 30, 2019 (without the requirement to include footnote disclosure).  “Unrestricted Subsidiary” means any Subsidiary (other than the Borrower) designated by the  Borrower as an Unrestricted Subsidiary pursuant to Section 5.15 subsequent to the Effective Date.  “Unsecured Material Indebtedness” means any third party unsecured debt for borrowed money in  an aggregate principal amount exceeding (x) during the Suspension Period, $5,000,000, and (y) after the  Suspension Period has ended, $10,000,000.  “USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools  Required to Intercept and Obstruct Terrorism Act of 2001, as amended from time to time.  “U.S. Special Resolution Regime” has the meaning assigned to such term in Section 9.22.  “U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(e).  





 






82  “Vehicles” means all railcars, cars, trucks, trailers, construction and earth moving equipment and  other vehicles covered by a certificate of title law of any state and all tires and other appurtenances to any  of the foregoing.  “Voting Stock” means, with respect to any Person, shares of such Person’s Equity Interests that is  at the time generally entitled, without regard to contingencies, to vote in the election of the Board of  Directors of such Person. To the extent that a partnership agreement, limited liability company agreement  or other agreement governing a partnership or limited liability company provides that the members of the  Board of Directors of such partnership or limited liability company (or, in the case of a limited partnership  whose business and affairs are managed or controlled by its general partner, the Board of Directors of the  general partner of such limited partnership) is appointed or designated by one or more Persons rather than  by a vote of Voting Stock, each of the Persons who are entitled to appoint or designate the members of such  Board of Directors will be deemed to own a percentage of Voting Stock of such partnership or limited  liability company equal to (a) the aggregate votes entitled to be cast on such Board of Directors by the  members of such Board of Directors which such Person or Persons are entitled to appoint or designate  divided by (b) the aggregate number of votes of all members of such Board of Directors.  “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the  number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount  of each then remaining installment, sinking fund, serial maturity or other required payments of principal,  including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest  one-twelfth) that will elapse between such date and the making of such payment (it being understood that  the Weighted Average Life to Maturity shall be determined without giving effect to any change in  installment or other required payments of principal resulting from prepayments following the original  Incurrence of such Indebtedness); by (b) the then outstanding principal amount of such Indebtedness.  “wholly-owned subsidiary” means, with respect to any Person at any date, a subsidiary of such  Person of which securities or other ownership interests representing 100% of the Equity Interests (other  than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required  by applicable Requirements of Law) are, as of such date, owned, controlled or held by such Person or one  or more wholly-owned subsidiaries of such Person or by such Person and one or more wholly-owned  subsidiaries of such Person.  “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial  withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of  ERISA.  “Withholding Agent” means any Loan Party, the Administrative Agent and, in the case of any U.S.  federal withholding tax, any other withholding agent, if applicable.  “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the  write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In  Legislation for the applicable EEA Member Country, which write-down and conversion powers are  described in the EU Bail-In Legislation Schedule.  SECTION 1.02 Classification of Loans and Borrowings.  For purposes of this Agreement,  Loans and Borrowings may be classified and referred to by Class (e.g., a “Term Loan”) or by Type (e.g., a  “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Term Loan”).  Borrowings also may be  classified and referred to by Class (e.g., a “Term Borrowing”) or by Type (e.g., a “Eurocurrency  Borrowing”) or by Class and Type (e.g., a “Eurocurrency Term Borrowing”).  





 






83  SECTION 1.03 Terms Generally.  The definitions of terms herein shall apply equally to the  singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall  include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and  “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be  construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise,  (a) any definition of or reference to any agreement (including this Agreement and the other Loan  Documents), instrument or other document herein shall be construed as referring to such agreement,  instrument or other document as from time to time amended, amended and restated, supplemented or  otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth  herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and  assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental  Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof,  (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer  to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to  Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and  Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to  have the same meaning and effect and to refer to any and all tangible and intangible assets and properties,  including cash, securities, accounts and contract rights.  SECTION 1.04 Accounting Terms; GAAP.  (a) All accounting terms not specifically or completely defined herein shall be construed in  conformity with, and all financial data (including financial ratios and other financial calculations) required  to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a  manner consistent with that used in preparing the Audited Financial Statements, except assuming that ASC  606 has been adopted for the entirety of the period and as otherwise specifically prescribed herein.  (b) Where reference is made to “the Borrower and the Restricted Subsidiaries on a  consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of Holdings  other than the Borrower and the Restricted Subsidiaries.  (c) In the event that the Borrower elects to prepare its financial statements in accordance with  IFRS and such election results in a change in the method of calculation of financial covenants, standards or  terms (collectively, the “Accounting Changes”) in this Agreement, the Borrower and the Administrative  Agent agree to enter into good faith negotiations in order to amend such provisions of this Agreement  (including the levels applicable herein to any computation of the Total Net Leverage Ratio, the Total Net  Cash Leverage Ratio, the LTV Ratio and the Contract Asset Balance Coverage Ratio) so as to reflect  equitably the Accounting Changes with the desired result that the criteria for evaluating the Borrower’s  financial condition shall be substantially the same after such change as if such change had not been made.   Until such time as such an amendment shall have been executed and delivered by the Borrower, the  Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this  Agreement shall continue to be calculated or construed in accordance with GAAP (as determined in good  faith by a Responsible Officer of the Borrower) (it being agreed that the reconciliation between GAAP and  IFRS used in such determination shall be made available to Lenders) as if such change had not occurred.  (d) If the Borrower notifies the Administrative Agent that the Borrower requests an  amendment to any provision hereof to eliminate the effect of any change occurring after the Effective Date  in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent  notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such  purpose), regardless of whether any such notice is given before or after such change in GAAP or in the  application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied  





 






84  immediately before such change shall have become effective until such notice shall have been withdrawn  or such provision amended in accordance herewith (but only to the extent that, without undue burden and  expense, the Borrower, its auditors and/or its financial systems are capable of interpreting such provisions  as if such change had not occurred); provided, further, that if such an amendment is requested by the  Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good  faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment  or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the  application thereof.  Notwithstanding any other provision contained herein, (a) all terms of an accounting  or financial nature used herein shall be construed, and all computations of amounts and ratios referred to  herein shall be made, without giving effect to any election under FASB Accounting Standards Codification  825-Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards  Codification), to value any Indebtedness of Holdings or any Subsidiary at “fair value,” as defined therein  and (b) the amount of any Indebtedness under GAAP with respect to Financing Lease Obligations shall be  determined in accordance with the definition of Financing Lease Obligations.  (e) For the avoidance of doubt, notwithstanding any classification under GAAP of any Person  or business in respect of which a definitive agreement for the Disposition thereof has been entered into as  discontinued operations, the Net Income of such Person or business shall not be excluded from the  calculation of Net Income until such Disposition shall have been consummated.  SECTION 1.05 Currency Translation; Rates.  (a) For purposes of any determination under Article V, Article VI or Article VII or any  determination under any other provision of this Agreement expressly requiring the use of a current exchange  rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than  Dollars shall be translated into Dollars at the Exchange Rate (rounded to the nearest currency unit, with 0.5  or more of a currency unit being rounded upward); provided, however, that for (x) purposes of determining  compliance with Article VI with respect to the amount of any Indebtedness, Lien, Investment, Disposition,  Restricted Payment or Restricted Debt Payment in a currency other than Dollars, no Default or Event of  Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after  the time such Indebtedness, Lien or Investment is incurred or Disposition, Restricted Payment or Restricted  Debt Payment made and (y) for purposes of determining compliance with any Dollar-denominated  restriction on the incurrence of Indebtedness, if such Indebtedness is incurred to Refinance other  Indebtedness denominated in a foreign currency, and such Refinancing would cause the applicable Dollar- denominated restriction to be exceeded if calculated at the relevant currency Exchange Rate in effect on the  date of such Refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded  so long as the principal amount of the Indebtedness that is incurred to Refinance such Indebtedness does  not exceed the principal amount (or accreted amount) of such Indebtedness being Refinanced, except by an  amount equal to the accrued interest, dividends and premium (including tender premiums), if any, thereon  plus defeasance costs, underwriting discounts and other amounts paid and fees and expenses (including  original issue discount, closing payments, upfront fees and similar fees) incurred in connection with such  Refinancing plus an amount equal to any existing commitment unutilized and letters of credit undrawn  thereunder and; provided further that, for the avoidance of doubt, the foregoing provisions of this  Section 1.05 shall otherwise apply to such Sections, including with respect to determining whether any  Indebtedness, Lien or Investment may be incurred or Disposition, Restricted Payment or Restricted Debt  Payment made at any time under such Sections.  For purposes of any determination of Consolidated Total  Debt or Consolidated Total Net Debt, amounts in currencies other than Dollars shall be translated into  Dollars at the currency exchange rates used in preparing the most recently delivered financial statements  pursuant to Section 5.01(a) or Section 5.01(b).  Each provision of this Agreement shall be subject to such  reasonable changes of construction as the Administrative Agent may from time to time specify with the  Borrower’s consent (such consent not to be unreasonably withheld) to appropriately reflect a change in  





 






85  currency of any country and any relevant market conventions or practices relating to such change in  currency.  (b) The Administrative Agent does not warrant, nor accept responsibility, nor shall the  Administrative Agent have any liability with respect to the administration, submission or any other matter  related to the rates in the definition of “LIBO Rate” or with respect to any comparable or successor rate  thereto, except as expressly provided herein.  SECTION 1.06 Timing of Payment of Performance.  When payment of any obligation or the  performance of any covenant, duty or obligation is stated to be due or required on a day which is not a  Business Day, the date of such payment (other than as described in the definition of “Interest Period”) or  performance shall extend to the immediately succeeding Business Day, and, in the case of any payment  accruing interest, interest thereon shall be payable for the period of such extension.  SECTION 1.07 Cashless Rollovers.  Notwithstanding anything to the contrary contained in  this Agreement or in any other Loan Document, to the extent that any Lender extends the maturity date of,  or replaces, renews or refinances, any of its then-existing Loans with Incremental Term Loans, Loans in  connection with any Replacement Revolving Commitments, Extended Revolving Commitments, Extended  Revolving Loans, or loans incurred under a new credit facility, in each case, to the extent such extension,  replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such  extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder  or any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”,  “in Cash” or any other similar requirement.   SECTION 1.08 Certain Calculations and Tests.  Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes  of (i) determining compliance with any provision in this Agreement or any Loan Document that requires  the calculation of any financial ratio or test (including, without limitation, any Total Net Leverage Ratio,  any Total Net Cash Leverage Ratio, any Contract Asset Balance Coverage Ratio or any LTV Ratio test  (including as required in the definition of “Permitted Acquisition”)), (ii) determining compliance with  representations and warranties or the requirement regarding the absence of a Default or Event of Default  (or any type of Default or Event of Default) (other than in connection with any borrowing of Revolving  Loans or issuance of any Letter of Credit under the Revolving Credit Facility (or Other Revolving  Commitments)) or (iii) testing any cap expressed as a percentage of Consolidated EBITDA, Consolidated  Cash EBITDA, Liquidity or Consolidated Total Assets and any other availability of a “basket” or exception  set forth in Article VI, in each case in connection with a Specified Transaction or other transaction permitted  hereunder, undertaken in connection with the consummation of a Limited Condition Transaction, the date  of determination of whether any such action is permitted hereunder (but not, for the avoidance of doubt, in  connection with any calculation of the Financial Maintenance Covenant for the purposes of Section 6.13  only), at the election of the Borrower (such election to exercise such option in connection with any Limited  Condition Transaction, an “LCT Election”), will be deemed to be (x) the date the definitive agreements for  such Limited Condition Transaction are entered into or (y) in respect of sales in connection with an  acquisition to which the United Kingdom City Code on Takeovers and Mergers applies (or similar law or  practice in other jurisdictions), the date on which a “Rule 2.7 announcement” of a firm intends to make an  offer or similar announcement or determination in another jurisdiction subject to laws similar to the United  Kingdom City Code on Takeovers and Mergers in respect of a target of a Limited Condition Transaction  (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction and the  other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and  the use of proceeds thereof) as if they had occurred at the beginning of the most recently completed Tests  Period ending on or prior to the LCT Test Date, the Borrower could have taken such action on the relevant  





 






86  LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of  Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default shall be  deemed to have been complied with.  For the avoidance of doubt, if the Borrower has made an LCT Election  and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test  Date are exceeded as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of  the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited  Condition Transaction, such “baskets” or ratios and other provisions will not be deemed to have been  exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition  Transaction is permitted hereunder and (y) in connection with any subsequent calculation of any ratio or  “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on  which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for  such Limited Condition Transaction is terminated or expires without consummation of such Limited  Condition Transaction, any such ratio or “basket” availability shall be calculated (x) on a pro forma basis  assuming such Limited Condition Transaction and other transactions in connection therewith (including  any incurrence of Indebtedness and the use of proceeds thereof (but without netting the cash proceeds  thereof)) had been consummated or (y) solely in respect of any Restricted Payment or any Restricted Debt  Payment, on a standalone basis without assuming such Limited Condition Transaction and other  transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds  thereof (but without netting the cash proceeds thereof)) had been consummated.  For the further avoidance  of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise,  all determinations of (x) compliance with any financial ratio or test (including, without limitation, any Total  Net Leverage Ratio, any Total Net Cash Leverage Ratio, any Contract Asset Balance Coverage Ratio or  any LTV Ratio test (but not, for the avoidance of doubt, in connection with any calculation of the Financial  Maintenance Covenant for the purposes of Section 6.13 only)) and/or any cap expressed as a percentage of  Consolidated EBITDA, Consolidated Cash EBITDA, Liquidity or Consolidated Total Assets, (y) any  representation and warranties, or any requirement regarding the absence of a Default or Event of Default  (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall be made  as of the applicable date of the consummation of the Specified Transaction or other transaction hereunder.  SECTION 1.09 Rounding.  Any financial ratios required to be maintained by the Borrower  pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under  this Agreement) shall be calculated by dividing the appropriate component by the other component,  carrying the result to one place more than the number of places by which such ratio is expressed herein and  rounding the result up or down to the nearest number (with a rounding up for five).  SECTION 1.10 [Reserved].  SECTION 1.11 Pro Forma and Other Calculations.  (a) Notwithstanding anything to the contrary herein, financial ratios and tests (including  measurements of Consolidated Total Assets, Consolidated Cash EBITDA, Liquidity or Consolidated  EBITDA and the Total Net Leverage Ratio, the Total Net Cash Leverage Ratio, the Contract Asset Balance  Coverage Ratio or the LTV Ratio), shall be calculated in the manner prescribed by this Section 1.11;  provided that, notwithstanding anything to the contrary in clauses (b), (c) or (d) of this Section 1.11, (I)  when calculating the Total Net Leverage Ratio for purposes of, as applicable, (i) [reserved], (ii) [reserved]  and (iii) Section 6.13 and (II) when calculating the Total Net Cash Leverage Ratio for purposes of Section  2.11(d), in each case, the events described in this Section 1.11 that occurred subsequent to the end of the  applicable Test Period shall not be given pro forma effect; provided, however, that for purposes of  calculating the ECF Percentage, Consolidated Total Net Debt shall be determined after giving pro forma  effect to the Permitted ECF Recalculation Considerations assuming such prepayments had been made on  the last day of such fiscal year.  In addition, whenever a financial ratio or test is to be calculated on a pro  





 






87  forma basis or requires pro forma compliance, the reference to “Test Period” for purposes of calculating  such financial ratio or test shall be deemed to be a reference to, and shall be based on, the Test Period most  recently ended for which financial statements have been (or were required to have been) delivered pursuant  to Section 5.01(a) or (b).  (b) For purposes of calculating any financial ratio or test (including Consolidated Total Assets,  Consolidated Cash EBITDA or Consolidated EBITDA), Specified Transactions (with any incurrence or  Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.11)  that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior  to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated  on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in  Consolidated EBITDA, Consolidated Cash EBITDA and the component financial definitions used therein  attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in  the case of Consolidated Total Assets or “unrestricted” cash and Cash Equivalents, on the last day of the  applicable Test Period).  If, since the beginning of any applicable Test Period, any Person that subsequently  became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Holdings, the  Borrower or any Restricted Subsidiary since the beginning of such Test Period shall have made any  Specified Transaction that would have required adjustment pursuant to this Section 1.11, then such financial  ratio or test (including Consolidated Total Assets and Consolidated EBITDA) shall be calculated to give  pro forma effect thereto in accordance with this Section 1.11.  (c) Whenever pro forma effect or a determination of pro forma compliance is to be given to a  Specified Transaction or a Specified Restructuring, the pro forma calculations shall be made in good faith  by a Responsible Officer of Holdings and may include, for the avoidance of doubt, the amount of “run rate”  cost savings, operating expense reductions and cost synergies and other synergies projected by Holdings in  good faith to result from or relating to any Specified Transaction (including the Transactions) or Specified  Restructuring that is being given pro forma effect or for which a determination of pro forma compliance is  being made that have been realized or are expected to be realized and for which the actions necessary to  realize such cost savings, operating expense reductions, cost synergies or other synergies have been taken  or initiated, have been committed to be taken or initiated, with respect to which substantial steps have been  taken or initiated or which are expected to be taken or initiated (in the good faith determination of the  Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions, cost  synergies and other synergies had been realized on the first day of such period and as if such cost savings,  operating expense reductions, cost synergies and other synergies were realized during the entirety of such  period and “run rate” means the full recurring benefit for a period that is associated with any action taken,  any action committed to be taken, any action with respect to which substantial steps have been taken or  initiated or any action that is expected to be taken (including any savings expected to result from the  elimination of Public Company Costs) net of the amount of actual benefits realized during such period from  such actions, and any such adjustments shall be included in the initial pro forma calculations of such  financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to  be realized) relating to such Specified Transaction or Specified Restructuring, and any such adjustments  included in the initial pro forma calculations shall continue to apply to subsequent calculations of such  financial ratios or tests, including during any subsequent Test Periods in which the effects thereof are  expected to be realizable; provided that (A) such amounts are reasonably identifiable and factually  supportable in the good faith judgment of Holdings, (B) such actions are taken, such actions are committed  to be taken, substantial steps with respect to such action have been taken or initiated or such actions are  expected to be taken no later than six fiscal quarters after the date of consummation of such Specified  Transaction or the date of initiation of such Specified Restructuring, (C) no amounts shall be added to the  extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA or  Consolidated Cash EBITDA (or any other components thereof), whether through a pro forma adjustment  or otherwise, with respect to such period and (D) the aggregate amount of any such pro forma increase  





 






88  added to Consolidated EBITDA pursuant to this clause (D), when combined, without duplication, with  amounts added to Consolidated EBITDA pursuant to clauses (a)(xv), (a)(xvi) and (b)(1) of the definition  of “Consolidated EBITDA” and amounts excluded pursuant to clause (a) of the definition of “Consolidated  Net Income” shall not exceed (x) for purpose of any calculation of Consolidated EBITDA under this  Agreement, an amount equal to 20.0% of Consolidated EBITDA for such Test Period (calculated prior to  giving effect to such add-backs) and (y) for purposes of any calculation of Consolidated Cash EBITDA  under this Agreement, an amount equal to 25.0% of Consolidated Cash EBITDA for such Test Period  (calculated prior to giving effect to such add-backs).  (d) In the event that Holdings, the Borrower or any Restricted Subsidiary incurs (including by  assumption or guarantee) or Refinances (including by redemption, repurchase, repayment, retirement or  extinguishment) any Indebtedness, in each case included in the calculations of any financial ratio or test,  (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to  or simultaneously with the event for which the calculation of any such ratio is made, then such financial  ratio or test shall be calculated giving pro forma effect to such incurrence or Refinancing of Indebtedness  (including pro forma effect to the application of the net proceeds therefrom), in each case to the extent  required, as if the same had occurred on the last day of the applicable Test Period; provided that, with  respect to any Incurrence of Indebtedness pursuant to Section 6.01(a) in reliance on the pro forma  calculation of the Total Net Cash Leverage Ratio (a “Ratio Incurrence”) such calculation shall not give pro  forma effect to any Indebtedness being incurred (or expected to be incurred) substantially simultaneously  or contemporaneously with such Ratio Incurrence in reliance on any “basket” set forth in Section 6.01(a)  (including clause (a) of the definition of “Incremental Cap” and any “baskets” measured as a percentage of  Consolidated Total Assets, Consolidated Cash EBITDA or Consolidated EBITDA and including any  Borrowing of up to $15,000,000 under the Revolving Credit Facility or issuance of any Letter of Credit,  except to the extent expressly required to be calculated otherwise in Section 2.20, Section 6.01(a)(xxiii) or  any Replacement Revolving Facility).  (e) Any such pro forma shall include, without limitation, all adjustments calculated in  accordance with Regulation S-X under the Securities Act.  ARTICLE II    THE CREDITS  SECTION 2.01 Commitments.  (a) (i) Subject to the terms and conditions set forth herein, (i) each Term Lender (other than  the 2020 Incremental Term Lenders and 2021 Incremental Term Lenders) severally agrees to make an  Initial Term Loan to the Borrower denominated in Dollars on the Effective Date in an aggregate principal  amount equal to its Initial Term Loan Commitment, (ii) each 2020 Incremental Term Lender severally  agrees to make a 2020 Incremental Term Loan to the Borrower denominated in Dollars on the 2020  Incremental Closing Date (as defined in Amendment No. 1) in an aggregate principal amount equal to its  2020 Incremental Term Loan Commitment, (iii) each 2021 Incremental Term Lender severally agrees to  make a 2021 Incremental Term Loan to the Borrower denominated in Dollars on the Amendment No. 5  Effective Date in an aggregate principal amount equal to its 2021 Incremental Term Loan Commitment,  (iv) each 2021-2 Incremental Term Lender severally agrees to make a 2021-2 Incremental Term Loan to  the Borrower denominated in Dollars on the 2021-2 Incremental Term Loan Closing Date in an aggregate  principal amount equal to its 2021-2 Incremental Term Loan Commitment, and (v) each Revolving Lender  agrees to make Revolving Loans to the Borrower denominated in Dollars during the Revolving Availability  Period in an aggregate principal amount which will not result in such Lender’s Revolving Exposure  exceeding such Lender’s Revolving Commitment; provided that any borrowing of Revolving Loans on the  





 






89  Effective Date shall not exceed the Initial Revolving Borrowing Amount.  The Borrower may borrow,  prepay and reborrow Revolving Loans.  Amounts repaid or prepaid in respect of Initial Term Loans, 2020  Incremental Term Loans, 2021 Incremental Term Loans and 2021-2 Incremental Term Loans may not be  reborrowed.  (b) Subject to the terms and conditions set forth in any Incremental Facility Amendment  providing for, as applicable, the making or Refinancing of Term Loans or Revolving Loans, each Term  Lender or Revolving Lender party thereto severally agrees to, as applicable, make or Refinance Term Loans  or Revolving Loans, as applicable, on the date specified therein in an aggregate amount not to exceed the  amount of such Term Lender’s or Revolving Lender’s Commitment as set forth therein.  (c) As of the Amendment No. 5 Effective Date, in accordance with, and upon the terms and  conditions set forth in, the Amendment No. 5, (A) the Original Revolving Commitment of each Class B  Revolving Lender outstanding on such date shall become Class B Revolving Commitments on such date in  an amount as set forth on Schedule I-B to the Amendment No. 5 and (B) the Original Revolving  Commitment of each Class A Revolving Lender described in clause (b) of the definition of “Class A  Revolving Lender” that do not become Class B Revolving Commitments pursuant to the foregoing  clause (A) shall be continued hereunder on such date as Revolving Commitments and reclassified as Class  A Revolving Commitments in an amount as set forth on Schedule I-B to the Amendment No. 5.  On and  after the Amendment No. 5 Effective Date, all Borrowings of Revolving Loans under Section 2.1(a)(iv)  shall be made pro rata between the Class A Revolving Facility and the Class B Revolving Facility in  proportion to the Total Class A Revolving Commitments and Total Class B Revolving Commitments.  Any  Original Revolving Loans outstanding immediately prior to giving effect to the Amendment No. 5 Effective  Date shall be continued as Revolving Loans hereunder on the Amendment No. 5 Effective Date; provided  that (x) the Original Revolving Loans of each Class A Revolving Lender will be continued as “Class A  Revolving Loans” hereunder and (y) the Original Revolving Loans of each Class B Revolving Lender will  become “Class B Revolving Loans” hereunder, in each case, on the terms set forth herein for such Class of  Revolving Commitments.  SECTION 2.02 Loans and Borrowings.  (a) Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting  of Loans of the same Class and Type made by the applicable Lenders ratably in accordance with their  respective Commitments of the applicable Class; provided that any Borrowing of Revolving Loans shall be  made pro rata between the Class A Revolving Commitments and the Class B Revolving Commitments in  proportion to the respective Revolving Commitments under each such Revolving Credit Facility.  The  failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its  obligations hereunder; provided that the Commitments of the Lenders are several and, other than as  expressly provided herein with respect to a Defaulting Lender, no Lender shall be responsible for any other  Lender’s failure to make Loans as required hereby.  (b) Subject to Section 2.14, each Revolving Loan Borrowing and Term Loan Borrowing  denominated in Dollars shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower  may request in accordance herewith.  Each Swingline Loan shall be an ABR Loan.  Each Lender at its  option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make  such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to  repay such Loan in accordance with the terms of this Agreement, (ii) such Loan shall be deemed to have  been made and held by such Lender, and the obligation of the Borrower to repay such Loan shall  nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of such  Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize increased  costs to the Borrower resulting therefrom (which obligation of such Lender shall not require it to take, or  





 






90  refrain from taking, actions that it determines would result in increased costs for which it will not be  compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of  such request for costs for which compensation is provided under this Agreement, the provisions of Section  2.15 shall apply); provided, further, that no such domestic or foreign branch or Affiliate of such Lender  shall be entitled to any greater indemnification under Section 2.17 with respect to such Loan than that to  which the applicable Lender was entitled on the date on which such Loan was made (except in connection  with any indemnification entitlement arising as a result of any Change in Law after the date on which such  Loan was made).  (c) At the commencement of each Interest Period for any Eurocurrency Borrowing, such  Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not  less than the Borrowing Minimum; provided that a Eurocurrency Borrowing that results from a continuation  of an outstanding Eurocurrency Borrowing may be in an aggregate amount that is equal to such outstanding  Borrowing.  At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount  that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum.  Each  Swingline Loan shall be in an amount that is an integral multiple of the Borrowing Multiple and not less  than the Borrowing Minimum.  Borrowings of more than one Type and Class may be outstanding at the  same time; provided that there shall not at any time be more than a total of 15 Eurocurrency Borrowings  outstanding (which number of Eurocurrency Borrowings may be increased or adjusted by agreement  between Holdings, the Borrower and the Administrative Agent in connection with any Incremental Facility  or Extended Loans/Commitments or Loan Modification Offer).  SECTION 2.03 Requests for Borrowings.  To request a Revolving Loan Borrowing or Term  Loan Borrowing, the Borrower shall notify the Administrative Agent of such request by delivery (by hand  delivery, facsimile or other electronic transmission) of a written Borrowing Request signed by the Borrower  to the Administrative Agent (a) not later than 2:00 p.m., New York City time, three Business Days before  the date of the proposed Borrowing (or one Business Day in the case of any Eurocurrency Borrowing to be  made on the Effective Date) (or such later time as the Administrative Agent may agree in its sole discretion)  or (b) in the case of an ABR Borrowing, not later than 2:00 p.m., New York City time, one Business Day  prior to the date of the proposed Borrowing.  Each such Borrowing Request shall (x) in the case of any  Revolving Loan Borrowing, be irrevocable upon delivery and (y) specify the following information (other  than, in the case of clause (vii) below, the Borrowing Request pertaining to Borrowings on the Effective  Date):  (i) whether the requested Borrowing is to be a Revolving Loan Borrowing, an Initial  Term Loan Borrowing or a Borrowing of any other Class (specifying the Class thereof);  (ii) the aggregate amount of such Borrowing (for the avoidance of doubt, any  Borrowing of Revolving Loans shall be allocated pro rata between the Class A Revolving  Commitments and Class B Revolving Commitments);  (iii) the date of such Borrowing, which shall be a Business Day;  (iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;  (v) in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable  thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and  (vi) the location and number of the Borrower’s account to which funds are to be  disbursed, which shall comply with the requirements of Section 2.06, or, in the case of any ABR  Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC  





 






91  Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC  Disbursement;   (vii) that, in the case of any Borrowing after the Effective Date, as of the date of such  Borrowing, the conditions set forth in Section 4.02(a) and Section 4.02(b) are satisfied.  If no election as to the Type of Borrowing is specified as to any Borrowing, then the requested Borrowing  shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency  Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.   Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative  Agent shall advise each Lender of the applicable Class of the details thereof and of the amount of such  Lender’s Loan to be made as part of the requested Borrowing.  SECTION 2.04 Swingline Loans.  (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance  upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to  make Swingline Loans to the Borrower from time to time during the Revolving Availability Period  denominated in Dollars in an aggregate principal amount at any time outstanding that will not result in (i)  the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments, (ii) the aggregate  amount of Swingline Loans outstanding exceeding the Swingline Sublimit or (iii) the Revolving Exposure  of any Lender exceeding such Lender’s Revolving Commitments; provided that (A) the Swingline Lender  shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan and (B) the  Swingline Lender shall not be under any obligation to make any Swingline Loan if, after giving effect to  Section 2.22(a)(iv), any Defaulting Lender Fronting Exposure would remain outstanding.  Within the  foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay  and reborrow Swingline Loans.  (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the  Swingline Lender of such request by written notice, not later than 10:00 a.m., New York City time, on the  day of such proposed Swingline Loan.  Each such notice shall be irrevocable and shall specify the requested  date (which shall be a Business Day), the amount of the requested Swingline Loan and, in the case of any  Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section  2.05(a)(vi), the identity of the Issuing Bank that made such LC Disbursement.  The Swingline Lender shall  make each Swingline Loan available to the Borrower by means of a credit to the deposit account of the  Borrower specified in such written notice (or, in the case of a Swingline Loan made to finance the  reimbursement of an LC Disbursement as provided in Section 2.05(a)(vi), by remittance to the applicable  Revolving Issuing Bank) promptly on the requested date of such Swingline Loan.  (c) The Swingline Lender may by written notice given to the Administrative Agent not later  than 10:00 a.m., New York City time, on any Business Day require the Revolving Lenders to acquire  participations on such Business Day in all or a portion of the Swingline Loans outstanding.  Such notice  shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate.   Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving  Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline  Loans.  Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as  provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s  Applicable Percentage of such Swingline Loan or Swingline Loans.  Each Revolving Lender acknowledges  and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is  absolute and unconditional and shall not be affected by any circumstance whatsoever, including the  occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments,  





 






92  and that each such payment shall be made without any offset, abatement, withholding or reduction  whatsoever.  Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer  of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made  by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving  Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline  Lender the amounts so received by it from the Revolving Lenders.  The Administrative Agent shall notify  the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and  thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not  to the Swingline Lender.  Any amounts received by the Swingline Lender from the Borrower (or other  Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of  the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the  Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted  by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this  paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so  remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and  thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for  any reason.  The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve  the Borrower of any default in the payment thereof. On and after the Amendment No. 5 Effective Date until  the Swingline Maturity Date, participations in Swingline Loans shall be allocated in accordance with each  Revolving Lender’s Applicable Percentage of the Total Revolving Commitment (including both the Class  A Revolving Commitments and the Class B Revolving Commitments) and pro rata between the Class A  Revolving Commitments and the Class B Revolving Commitments.  (d) In the event there is no Swingline Lender, the Borrower may designate as replacement  Swingline Lender one Revolving Lender that agrees to serve in such capacity as provided below; provided  that such Swingline Lender is reasonably acceptable to the Administrative Agent.  The acceptance by a  Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement,  which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,  executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and  after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations  of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall  be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. At  no time shall there be more than one Swingline Lender.  (e) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline  Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the  Administrative Agent.  Any such termination shall become effective upon the earlier of (i) such Swingline  Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the  delivery thereof, provided that no such termination shall become effective until and unless the Swingline  Exposure of such Swingline Lender shall have been reduced to zero.  Notwithstanding the effectiveness of  any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to  have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it  prior to such termination, but shall not make any additional Swingline Loans.  SECTION 2.05 Letters of Credit.  (a) General. Subject to the terms and conditions set forth herein (including Section 2.22), each  Issuing Bank agrees, in reliance upon agreement of the Revolving Lenders set forth in this Section 2.05, to  issue Letters of Credit denominated in Dollars for the account of the Borrower (or for the account of any  Restricted Subsidiary so long as the Borrower and such Restricted Subsidiary are co-applicants in respect  of such Letter of Credit), in a form reasonably acceptable to the applicable Issuing Bank, which shall reflect  





 






93  the standard policies and operating procedures of such Issuing Bank, at any time and from time to time  during the Revolving Availability Period and prior to the fifth Business Day prior to the Latest Maturity  Date applicable to Revolving Loans.  In the event of any inconsistency between the terms and conditions  of this Agreement and the terms and conditions of any form of letter of credit application or other agreement  submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to  any Letter of Credit, the terms and conditions of this Agreement shall control.  (b) Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance  of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the  Borrower shall deliver in writing by hand delivery or facsimile (or transmit by electronic communication,  if arrangements for doing so have been approved by the recipient) to the applicable Issuing Bank and the  Administrative Agent (at least three Business Days before the requested date of issuance, amendment,  renewal or extension or such shorter period as the applicable Issuing Bank and the Administrative Agent  may agree) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be  amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension  (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply  with paragraph (a)(iv) of this Section), the amount and currency of such Letter of Credit, the name and  address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew  or extend such Letter of Credit.  If requested by the applicable Issuing Bank, the Borrower also shall submit  a letter of credit application on such Issuing Bank’s standard form in connection with any request for a  Letter of Credit.  A Letter of Credit shall be issued, amended, renewed or extended only if (and upon  issuance, amendment, renewal or extension of any Letter of Credit the Borrower shall be deemed to  represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (A) the  aggregate LC Exposure attributable to Letters of Credit issued by such Issuing Bank shall not exceed the  LC Commitment of such Issuing Bank, (B) the aggregate Revolving Exposures shall not exceed the  aggregate Revolving Commitments (and the Revolving Exposures of Revolving Lenders having Class A  Revolving Commitments shall not exceed the Class A Revolving Commitments, and the Revolving  Exposures of Revolving Lenders having Class B Revolving Commitments shall not exceed the Class B  Revolving Commitments), (C) the aggregate LC Exposure shall not exceed the Letter of Credit Sublimit,  (D) the Revolving Exposure of any Lender shall not exceed such Lender’s Revolving Commitments and  (E) the face amount of outstanding Letters of Credit issued by any Issuing Bank shall not exceed such  Issuing Bank’s Applicable LC Fronting Sublimit.  No Issuing Bank shall be under any obligation to issue  any Letter of Credit if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall  enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any law applicable to such Issuing  Bank any directive (whether or not having the force of law) from any Governmental Authority with  jurisdiction over such Issuing Bank shall prohibit the issuance of letters of credit generally or the Letter of  Credit in particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any  restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated  hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed  loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good  faith deems material to it, (B)  any Lender is at that time a Defaulting Lender, if after giving effect to  Section 2.22(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding, unless such Issuing  Bank has entered into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to  such Issuing Bank with the Borrower or such Lender to eliminate such Issuing Bank’s Defaulting Lender  Fronting Exposure arising from either the Letter of Credit then proposed to be issued or such Letter of  Credit and all other LC Exposure as to which such Issuing Bank has Defaulting Lender Fronting Exposure  or (C) such issuance will violate any policy or procedure of such Issuing Bank without such Issuing Bank’s  prior written consent.  Upon the issuance of each Letter of Credit, the Issuing Bank shall send the  Administrative Agent a copy of the same.  





 






94  (c) Notice.  Each Issuing Bank agrees that it shall not permit any issuance or amendment of a  Letter of Credit to occur unless it shall have given to the Administrative Agent written notice thereof  required under paragraph (m) of this Section.  (d) Expiration Date.  Each Letter of Credit shall expire at or prior to the close of business on  the earlier of (A) the date that is one year after the date of the issuance of such Letter of Credit (or, in the  case of any extension thereof, one year after the then-current expiration date at the time of such extension)  and (B) the date that is the third Business Day prior to the Latest Maturity Date applicable to Revolving  Loans; provided that if such expiry date is not a Business Day, such Letter of Credit shall expire at or prior  to close of business on the next succeeding Business Day; provided, however, that any Letter of Credit  may, upon the request of the Borrower and with the consent of the Issuing Bank, in its sole discretion,  include a provision whereby such Letter of Credit shall be extended automatically for additional  consecutive periods of one year or less (but not beyond the date that is three Business Days prior to the  applicable Latest Maturity Date unless Cash Collateralized or backstopped pursuant to arrangements  reasonably satisfactory to the Issuing Bank thereof) unless the applicable Issuing Bank notifies the  beneficiary thereof within the time period specified in such Letter of Credit or, if no such time period is  specified, at least 30 days prior to the then-applicable expiration date, that such Letter of Credit will not be  extended; provided that such extended terms are reasonably satisfactory to the relevant Issuing Bank.  (e) Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter of Credit  increasing the amount thereof) and without any further action on the part of the Issuing Bank that is the  issuer thereof or the Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each  Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to  such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such  Letter of Credit.  On and after the Amendment No. 5 Effective Date, participations in Letters of Credit shall  be allocated in accordance with each Revolving Lender’s Applicable Percentage of the Total Revolving  Commitment (including both Class A Revolving Commitments and Class B Revolving Commitments) and  pro rata between Class A Revolving Commitments and Class B Revolving Commitments.  In consideration  and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees  to pay to the Administrative Agent, for the account of such Issuing Bank, such Revolving Lender’s  Applicable Percentage of the Total Revolving Commitments of each LC Disbursement made by such  Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (a)(vi) of this  Section in the currency of such LC Disbursement, or of any reimbursement payment required to be refunded  to the Borrower for any reason.  Each Revolving Lender acknowledges and agrees that its obligation to  acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional  and shall be pro rata based on such Lender’s Applicable Percentage of the Total Revolving Commitments  and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension  of any Letter of Credit or the occurrence and continuance of a Default or any reduction or termination of  the Revolving Commitments, and that each such payment shall be made without any offset, abatement,  withholding or reduction whatsoever.  On the Amendment No. 5 Effective Date, the Letter of Credit  Participations in any issued and outstanding Letters of Credit shall be reallocated so that, after giving effect  thereto, the Class A Revolving Lenders and the Class B Revolving Lenders shall share ratably in such Letter  of Credit Participation in accordance with such Revolving Lender’s Applicable Percentage of the Total  Revolving Commitment (including both the Class A Revolving Commitments and the Class B Revolving  Commitments from time to time in effect).  Thereafter Letter of Credit Participations in any newly-issued  Letters of Credit shall be allocated in accordance with each Revolving Lender’s Applicable Percentage of  the Total Revolving Commitments (including both the Class A Revolving Commitments and the Class B  Revolving Commitments from time to time in effect).  (f) Reimbursement.  If an Issuing Bank shall make any LC Disbursement in respect of a Letter  of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an  





 






95  amount equal to such LC Disbursement in Dollars not later than 2:00 p.m., New York City time (A) on the  next succeeding Business Day if the Borrower receives notice of such LC Disbursement on or before 12:00  p.m., New York City time on the day of such LC Disbursement or (B) on the second succeeding Business  Day if the Borrower receive notice of such LC Disbursement after 12:00 p.m., New York City time on the  day of such LC Disbursement; provided that, if such LC Disbursement is denominated in Dollars and is not  less than $100,000 (or such lesser amount as reasonably agreed to by the Administrative Agent), the  Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with  Section 2.03 or Section 2.04 that such payment be financed with an ABR Revolving Loan Borrowing or a  Swingline Loan, in each case in an equivalent amount, and, to the extent so financed, the Borrower’s  obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Loan  Borrowing or Swingline Loan.  If the Borrower fails to make such payment when due, the Administrative  Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from  the Borrower in respect thereof and such Revolving Lender’s Applicable Percentage thereof.  Promptly  following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its  Applicable Percentage of the Total Revolving Commitment of the payment then due from the Borrower, in  Dollars and in the same manner as provided in Section 2.06 with respect to Loans made by such Lender  (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders  pursuant to this paragraph), and the Administrative Agent shall promptly remit to the applicable Issuing  Bank the amounts so received by it from the Revolving Lenders.  Promptly following receipt by the  Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative  Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders  have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving  Lenders and such Issuing Bank as their interests may appear.  Any payment made by a Revolving Lender  or the Swingline Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC Disbursement  (other than the funding of an ABR Revolving Loan or a Swingline Loan as contemplated above) shall not  constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.   For the avoidance of doubt, all distributions under this Section 2.05(h) shall be made to each Lender with  a Revolving Commitment pro rata based on each such Lender’s Applicable Percentage of the Total  Revolving Commitments without regard to the Class of the Revolving Commitments held by such Lender.    (g) Obligations Absolute.  The Borrower’s obligation to reimburse LC Disbursements as  provided in paragraph (a)(vi) of this Section is absolute, unconditional and irrevocable, and shall be  performed strictly in accordance with the terms of this Agreement under any and all circumstances  whatsoever and irrespective of (A) any lack of validity or enforceability of any Letter of Credit or this  Agreement, or any term or provision therein, (B) any draft or other document presented under a Letter of  Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or  inaccurate in any respect, (C) payment by an Issuing Bank under a Letter of Credit against presentation of  a draft or other document that does not comply with the terms of such Letter of Credit or (iv) any other  event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the  provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,  the Borrower’s obligations hereunder.  None of the Administrative Agent, the Lenders, the Issuing Banks  or any of their Affiliates shall have any liability or responsibility by reason of or in connection with the  issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder  (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission,  interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or  relating to any Letter of Credit (including any document required to make a drawing thereunder), any error  in translation, any error in interpretation of technical terms or any consequence arising from causes beyond  the control of the Issuing Banks; provided that the foregoing shall not be construed to excuse any Issuing  Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential or  punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by  applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care  





 






96  when determining whether drafts and other documents presented under a Letter of Credit comply with the  terms thereof.  The parties hereto expressly agree that, in the absence of gross negligence or willful  misconduct on the part of any Issuing Bank (as determined by a court of competent jurisdiction in a final,  nonappealable judgment) or the Issuing Bank’s willful failure to pay under any Letter of Credit after the  presentation to it by the beneficiary of documents strictly complying with the terms and conditions of a  Letter of Credit (as determined by a court of competent jurisdiction in a final, non-appealable judgment),  such Issuing Bank shall be deemed to have exercised care in each such determination.  In furtherance of  the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents  presented that appear on their face to be in compliance with the terms of a Letter of Credit, an Issuing Bank  may, in its sole discretion, either accept and make payment upon such documents without responsibility for  further investigation, regardless of any notice or information to the contrary, or refuse to accept and make  payment upon such documents if such documents are not in strict compliance with the terms of such Letter  of Credit, and any such acceptance or refusal shall be deemed not to constitute gross negligence or willful  misconduct.  (h) Disbursement Procedures.  Each Issuing Bank shall, promptly following its receipt thereof,  examine all documents purporting to represent a demand for payment under a Letter of Credit.  Each Issuing  Bank shall promptly notify the Administrative Agent and the Borrower in writing of such demand for  payment and whether such Issuing Bank has made a LC Disbursement thereunder; provided that any failure  to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such  Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement in accordance with  paragraph (f) of this Section.   (i) Interim Interest.  If an Issuing Bank shall make any LC Disbursement, then, unless the  Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is required to  be reimbursed pursuant to Section 2.05(e), the unpaid amount thereof shall bear interest, for each day from  and including the date such LC Disbursement is made to but excluding the date that the Borrower  reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans;  provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph  (a)(vi) of this Section, then Section 2.13(d) shall apply.  Interest accrued pursuant to this paragraph shall be  paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest accrued  on and after the date of payment by any Revolving Lender pursuant to paragraph (a)(vi) of this Section to  reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment and  shall be payable on demand or, if no demand has been made, on the date on which the Borrower reimburse  the applicable LC Disbursement in full.  (j) Cash Collateralization.  If the maturity of the Loans has been accelerated, then on the  Business Day on which the Borrower receives notice from the Administrative Agent or the Required  Revolving Lenders demanding the deposit of Cash Collateral pursuant to this paragraph, the Borrower shall  deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the  benefit of the Revolving Lenders, an amount of cash in Dollars equal to the LC Exposure as of such date  plus any accrued and unpaid interest thereon; provided that the obligation to deposit such Cash Collateral  shall become effective immediately, and such deposit shall become immediately due and payable, without  demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the  Borrower described in clause (h) or (i) of Section 7.01.  The Borrower also shall deposit Cash Collateral  pursuant to this paragraph as and to the extent required by Section 2.11(b).  Each such deposit shall be held  by the Administrative Agent as collateral for the payment and performance of the obligations of the  Borrower under this Agreement.  At any time that there shall exist a Defaulting Lender, if any Defaulting  Lender Fronting Exposure remains outstanding (after giving effect to Section 2.22(a)(iv)), then promptly  upon the request of the Administrative Agent or any Issuing Bank, the Borrower shall deliver to the  Administrative Agent Cash Collateral in an amount sufficient to cover such Defaulting Lender Fronting  





 






97  Exposure (after giving effect to any Cash Collateral provided by the Defaulting Lender).  The  Administrative Agent shall have exclusive dominion and control, including the exclusive right of  withdrawal, over such account.  Other than any interest earned on the investment of such deposits, which  investments shall be made at the option and sole discretion of the Administrative Agent in Cash Equivalents  and at the Borrower’s risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on  such investments shall accumulate in such account.  Moneys in such account shall be applied by the  Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been  reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement  obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been  accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing more than  50.0% of the aggregate LC Exposure of all the Revolving Lenders), be applied to satisfy other obligations  of the Borrower under this Agreement in accordance with the terms of the Loan Documents.  If the  Borrower is required to provide an amount of Cash Collateral hereunder, such amount (to the extent not  applied as aforesaid) shall be returned to the Borrower within three Business Days after the Events of  Default giving rise to the acceleration of the maturity of the Loans has been cured or waived or after no  Default Lender Fronting Exposure remains outstanding, as applicable.  If the Borrower is required to  provide an amount of Cash Collateral hereunder pursuant to Section 2.11(b), such amount (to the extent not  applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such  return, the Borrower would remain in compliance with Section 2.11(b) and no Event of Default shall have  occurred and be continuing.  (k) Designation of Additional Issuing Banks.  The Borrower may, at any time and from time  to time, designate as additional Issuing Banks one or more Revolving Lenders that agree to serve in such  capacity as provided below.  The acceptance by a Revolving Lender of an appointment as an Issuing Bank  hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory  to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and  such designated Revolving Lender and, from and after the effective date of such agreement, (A) such  Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and  (B) references herein to the term “Issuing Bank” shall be deemed to include such Revolving Lender in its  capacity as an issuer of Letters of Credit hereunder.  (l) Termination of an Issuing Bank.  The Borrower may terminate the appointment of any  Issuing Bank as a “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank,  with a copy to the Administrative Agent.  Any such termination shall become effective upon the earlier of  (A) such Issuing Bank’s acknowledging receipt of such notice and (B) the fifth Business Day following the  date of the delivery thereof; provided that no such termination shall become effective until and unless the  LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been  reduced to zero.  At the time any such termination shall become effective, the Borrower shall pay all unpaid  fees accrued for the account of the terminated Issuing Bank pursuant to Section 2.12(b).  Notwithstanding  the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall  continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit  issued by it prior to such termination, but shall not issue any additional Letters of Credit.  (m) Issuing Bank Reports to the Administrative Agent.  Unless otherwise agreed by the  Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere  in this Section, report in writing to the Administrative Agent (A) periodic activity (for each successive  month) in respect of Letters of Credit issued by such Issuing Bank, including all issuances and amendments,  all expirations and cancellations and all disbursements and reimbursements, (B) within five Business Days  following the time that such Issuing Bank issues or amends any Letter of Credit, the date of such issuance  or amendment and the currency and available balance of the Letters of Credit issued or amended by it and  outstanding after giving effect to such issuance or amendment (and whether the amounts thereof shall have  





 






98  changed), (C) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date,  currency and amount of such LC Disbursement, (D) on any Business Day on which the Borrower fail to  reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of  such failure and amount of such LC Disbursement and (v) on any other Business Day, such other  information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such  Issuing Bank.  (n) Applicability of ISP and UCP.  Unless otherwise expressly agreed by the Issuing Bank and  the Borrower when a Letter of Credit is issued, (A) the rules of the ISP shall apply to each standby Letter  of Credit, and (B) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently  published by the International Chamber of Commerce at the time of issuance, shall apply to each  commercial Letter of Credit.  (o) Conflict with Issuer Documents.  In the event of any conflict between the terms hereof  and the terms of any Issuer Document, the terms hereof shall control.  SECTION 2.06 Funding of Borrowings.  (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof  by wire transfer of immediately available funds by 10:00 a.m., New York City time, to the Applicable  Account of the Administrative Agent most-recently designated by it for such purpose by notice to the  Lenders (or such earlier time on the Effective Date as may be agreed among the relevant Lenders, Holdings,  the Borrower and the Administrative Agent for the purpose of consummating the Transactions); provided  that Swingline Loans shall be made as provided in Section 2.04.  The Administrative Agent will make such  Loans available to the Borrower by promptly wiring the amounts so received, in like funds, to an account  of the Borrower designated by the Borrower in the applicable Borrowing Request; provided that ABR  Revolving Loans made to finance the reimbursement of a LC Disbursement as provided in Section 2.05(e)  shall be remitted by the Administrative Agent to the applicable Issuing Bank or, to the extent that Revolving  Lenders have made payments pursuant to Section 2.05(e) to reimburse such Issuing Bank, then to such  Lenders and such Issuing Bank as their interests may appear; provided, further, that, for the avoidance of  doubt, on and after the Amendment No. 5 Effective Date, all Borrowings of Revolving Loans hereunder  shall be made by each Revolving Lender in accordance with such Revolving Lender’s Applicable  Percentage of the Total Revolving Commitment, and Borrowings of Revolving Loans shall be allocated  pro rata between the Class A Revolving Facility and the Class B Revolving Facility in proportion to the  respective Revolving Commitments under each such Revolving Credit Facility.  (b) Unless the Administrative Agent shall have received notice from a Lender prior to the  proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such  Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such  share available on such date in accordance with paragraph (a) of this Section and may, in reliance on such  assumption and in its sole discretion, make available to the Borrower a corresponding amount.  In such  event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative  Agent, then the applicable Lender agrees to pay to the Administrative Agent an amount equal to such share  on demand of the Administrative Agent.  If such Lender does not pay such corresponding amount forthwith  upon demand of the Administrative Agent therefor, the Administrative Agent shall promptly notify the  Borrower, and the Borrower agrees to pay such corresponding amount to the Administrative Agent  forthwith on demand.  The Administrative Agent shall also be entitled to recover from such Lender or the  Borrower interest on such corresponding amount, for each day from and including the date such amount is  made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in  the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank compensation, or (ii) in the  





 






99  case of the Borrower, the interest rate applicable to such Borrowing in accordance with Section 2.13.  If  such Lender pays such amount to the Administrative Agent, then such amount shall constitute such  Lender’s Loan included in such Borrowing.  (c) Obligations of the Lenders hereunder to make Term Loans and Revolving Loans, to fund  participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 9.03(c)  are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to  make any payment under Section 9.03(c) on any date required hereunder shall not relieve any other Lender  of its corresponding obligation to do so on such date, and, other than as expressly provided herein with  respect to a Defaulting Lender, no Lender shall be responsible for the failure of any other Lender to so make  its Loan, to purchase its participation or to make its payment under Section 9.03(c).  SECTION 2.07 Interest Elections.  (a) Each Revolving Loan Borrowing and Term Loan Borrowing initially shall be of the Type  specified in the applicable Borrowing Request or designated by Section 2.03 and, in the case of a  Eurocurrency Borrowing, shall have an initial Interest Period as specified in such Borrowing Request or  designated by Section 2.03.  Thereafter, the Borrower may elect to convert such Borrowing to a different  Type or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest  Periods therefor, all as provided in this Section.  The Borrower may elect different options with respect to  different portions of the affected Borrowing, in which case each such portion shall be allocated ratably  among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such  portion shall be considered a separate Borrowing.  This Section shall not apply to Swingline Loans, which  may not be converted or continued.  (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative  Agent of such election by delivery (by hand delivery, facsimile or other electronic transmission) to the  Administrative Agent of a written Interest Election Request signed by the Borrower (i) in the case of an  election to convert or continue a Borrowing into a Eurocurrency Borrowing, not later than 2:00 p.m., New  York City time, three Business Days before the effective date of the election made pursuant to such Interest  Election Request and (ii) in the case of an election to convert or continue a Borrowing into an ABR  Borrowing, not later than 2:00 p.m., New York City time, one Business Day prior to the effective date of  the election made pursuant to such Interest Election Request.  (c) Each Interest Election Request shall specify the following information in compliance with  Section 2.03:  (i) the Borrowing to which such Interest Election Request applies and, if different  options are being elected with respect to different portions thereof, the portions thereof to be  allocated to each resulting Borrowing (in which case the information to be specified pursuant to  clauses (iii) and (iv) below shall be specified for each resulting Borrowing) (for the avoidance of  doubt, in the case of any Borrowing of Revolving Loans, such election shall be made pro rata  between the Class A Revolving Loans and Class B Revolving Loans);  (ii) the effective date of the election made pursuant to such Interest Election Request,  which shall be a Business Day;  (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency  Borrowing; and  





 






100  (iv) if the resulting Borrowing is to be a Eurocurrency Borrowing, the Interest Period  to be applicable thereto after giving effect to such election, which shall be a period contemplated  by the definition of the term “Interest Period.”  If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest  Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.  (d) Promptly following receipt of an Interest Election Request in accordance with this Section,  the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of such  Lender’s portion of each resulting Borrowing.  (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a  Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless such  Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be continued  as a Eurocurrency Borrowing with an Interest Period of one month.  Notwithstanding any contrary provision  hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request  of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing, (i) no  outstanding Borrowing may be converted to or continued as a Eurocurrency Borrowing and (ii) unless  repaid, each Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of the Interest  Period applicable thereto.  SECTION 2.08 Termination and Reduction of Commitments.  (a) Unless previously terminated, (i) the Initial Term Loan Commitments shall terminate upon  the making of the Initial Term Loans on the Effective Date, (ii) the 2020 Incremental Term Commitments  shall terminate upon the earlier to occur of (x) the making of the 2020 Incremental Term Loans and (y) 5:00  p.m. New York City time on March 25, 2020, (iii) the 2021 Incremental Term Commitments shall terminate  upon the earlier to occur of (x) the making of the 2021 Incremental Term Loans and (y) 5:00 p.m. New  York City time on June 11, 2021, (iv) the 2021-2 Incremental Term Commitments shall terminate upon the  earlier to occur of (x) the making of the 2021-2 Incremental Term Loans and (y) 5:00 p.m. New York City  time on November 10, 2021, and (v) the Revolving Commitments shall terminate on the Revolving  Maturity Date.  (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments  of any Class at the Borrower’s sole discretion (for the avoidance of doubt, such reduction or termination  need not be reduced or terminated on a pro rata basis among Classes of Commitments,); provided that  (i) each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of  $500,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving  Commitments of any Class if, after giving effect to any concurrent prepayment of the Revolving Loans of  such Class or Swingline Loans in accordance with Section 2.11, the aggregate Revolving Exposures of such  Class would exceed the aggregate Revolving Commitments of such Class.  (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce  the Commitments under paragraph (b) of this Section by 2:00 p.m. New York City time at least three  Business Days prior to the effective date of such termination or reduction, specifying such election and the  effective date thereof.  Promptly following receipt of any such notice, the Administrative Agent shall advise  the Lenders of the contents thereof.    (d) Any termination or reduction pursuant to this Section 2.08 shall apply proportionately and  permanently to reduce the Commitments of each of the Lenders within such Class; provided (1) the  Borrower may allocate any termination or reduction of Commitments among Classes of Commitments at  





 






101  its direction (including, for the avoidance of doubt, to the Commitments with respect to any Class of  Extended Revolving Commitments without any termination or reduction of the Commitments with respect  to any Existing Revolving Commitments of the same Specified Existing Revolving Commitment Class)  and (2) in connection with the establishment on any date of any Extended Revolving Commitments pursuant  to Section 2.24, the Existing Revolving Commitments of any one or more Lenders providing any such  Extended Revolving Commitments on such date shall be reduced in an amount equal to the amount of  Specified Existing Revolving Commitments so extended on such date (or, if agreed by the Borrower and  the Lenders providing such Extended Revolving Commitments, by any greater amount so long as (a) a  proportionate reduction of the Specified Existing Revolving Commitments has been offered to each Lender  to whom the applicable Revolving Credit Extension Request has been made (which may be conditioned  upon such Lender becoming an Extending Lender), and (b) the Borrower prepay the Existing Revolving  Loans of such Class owed to such Lenders providing such Extended Revolving Commitments to the extent  necessary to ensure that, after giving pro forma effect to such repayment or reduction, the Existing  Revolving Loans of such Class are held by the Lenders of such Class on a pro rata basis in accordance with  their Existing Revolving Commitments of such Class after giving pro forma effect to such reduction)  (provided that (x) after giving pro forma effect to any such reduction and to the repayment of any Loans  made on such date, the aggregate amount of the revolving credit exposure of any such Lender does not  exceed the Existing Revolving Commitment thereof (such revolving credit exposure and Revolving Credit  Commitment being determined in each case, for the avoidance of doubt, exclusive of such Lender’s  Extended Revolving Commitment and any exposure in respect thereof) and (y) for the avoidance of doubt,  any such repayment of Loans contemplated by the preceding clause shall be made in compliance with the  requirements of Section 2.18 with respect to the ratable allocation of payments hereunder, with such  allocation being determined after giving pro forma effect to any conversion or exchange pursuant to Section  2.24 of Existing Revolving Commitments and Existing Revolving Loans into Extended Revolving  Commitments and Extended Revolving Loans respectively, and prior to any reduction being made to the  Commitment of any other Lender).  (e) With respect to each mandatory reduction and termination of Revolving Commitments or  Replacement Revolving Credit Commitments (and any previously extended Revolving Commitments)  required in connection with the incurrence of any Incremental Refinancing Facility or the incurrence of any  Credit Agreement Refinancing Indebtedness incurred to Refinance any Revolving Commitments,  Replacement Revolving Commitments and/or Other Revolving Commitments, the Borrower may designate  (A) the Classes of Commitments to be reduced and terminated and (B) the corresponding Classes of Loans  to be prepaid; provided that (x) any such reduction and termination shall apply proportionately and  permanently to reduce the Commitments of each of the Lenders within any such Class and (y) after giving  pro forma effect to such termination or reduction and to any prepayments of Loans or cancellation or cash  collateralization of Letters of Credit made on the date of each such reduction and termination in accordance  with this Agreement, the aggregate amount of such Lenders’ credit exposures shall not exceed the  remaining Commitments of such Lenders’ in respect of the Class reduced and terminated.  In connection  with any such termination or reduction, to the extent necessary, the participations hereunder in outstanding  Letters of Credit and Swingline Loans may be required to be reallocated and related loans outstanding  prepaid and then reborrowed.  SECTION 2.09 Repayment of Loans; Evidence of Debt.  (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for  the account of each Lender the then unpaid principal amount of each Revolving Loan of such Lender on  the Revolving Maturity Date, (ii) to the Administrative Agent for the account of each Term Lender the then  unpaid principal amount of each Term Loan of such Term Lender as provided in Section 2.10 and (iii) to  the Swingline Lender the then unpaid principal amount of each Swingline Loan made by the Swingline  Lender on the earlier to occur of (A) the date that is 10 Business Days after such Loan is made and (B) the  





 






102  Revolving Maturity Date; provided that on each date that a Revolving Loan Borrowing in Dollars is made,  the Borrower shall repay all Swingline Loans that were outstanding on the date such Borrowing was  requested.  (b) Each Lender shall maintain in accordance with its usual practice an account or accounts  evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender,  including the amounts of principal and interest payable and paid to such Lender from time to time  hereunder.  (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount  of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the  amount of any principal or interest due and payable or to become due and payable from the Borrower to  each Lender hereunder, (iii) the amount of any sum received by the Administrative Agent hereunder for the  account of the Lenders and each Lender’s share thereof and (iv) any cancellation or retirement of Term  Loans contemplated by Section 9.04(g).  (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section  shall be prima facie evidence of the existence and amounts of the obligations recorded therein, provided  that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein  shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in  accordance with the terms of this Agreement.  In the event of any inconsistency between the entries made  pursuant to paragraphs (b) and (c) of this Section and the entries made in the Register pursuant to Section  9.04(b)(iv), the accounts maintained by the Administrative Agent and the entries made in the Register  pursuant to Section 9.04(b)(iv) shall control.  (e) Any Lender may request through the Administrative Agent that Loans of any Class made  by it be evidenced by a promissory note.  In such event, the Borrower shall execute and deliver to such  Lender a promissory note payable to such Lender or its registered assigns substantially in the form of  Exhibit L.  (f) For the avoidance of doubt, (x) with effect from the Amendment No. 1 Effective Date, the  2020 Incremental Term Loans made in accordance with Amendment No. 1 shall constitute for all purposes  of this Agreement, a “Term Loan” made pursuant to this Agreement and all provisions of this Agreement  applicable to Term Loans shall be applicable to the 2020 Incremental Term Loans; provided, that, the 2020  Incremental Term Loans shall constitute a separate Class of Loans from the “Initial Term Loans” for all  purposes of this Agreement and (y) with effect from the Amendment No. 1 Effective Date, the 2020  Incremental Term Loans Commitment shall constitute an “Incremental Commitment” for all purposes of  this Agreement, and all provisions of this Agreement applicable to Incremental Commitments in respect of  Incremental Term Loans shall be applicable to the 2020 Incremental Term Loan Commitments. Further,  with effect from the Amendment No. 1 Effective Date, the 2020 Incremental Term Loans (i) shall mature  and shall become due and payable on the Term Maturity Date applicable to Initial Term Loans and (ii) shall  be repaid in quarterly installments in accordance with Section 2.10(a)(ii).  (g) For the avoidance of doubt, (x) with effect from Amendment No. 5 Effective Date, the  2021 Incremental Term Loans made in accordance with Amendment No. 5 shall constitute for all purposes  of this Agreement, a “Term Loan” made pursuant to this Agreement and all provisions of this Agreement  applicable to Term Loans shall be applicable to the 2021 Incremental Term Loans; provided, that, with  effect from Amendment No. 5 Effective Date, the 2021 Incremental Term Loans Commitment shall  constitute an “Incremental Commitment” for all purposes of this Agreement, and all provisions of this  Agreement applicable to Incremental Commitments in respect of Incremental Term Loans shall be  applicable to the 2021 Incremental Term Loan Commitments. Further, with effect from Amendment No. 5  





 






103  Effective Date, the 2021 Incremental Term Loans (i) shall mature and shall become due and payable on the  Term Maturity Date applicable to Initial Term Loans and (ii) shall be repaid in quarterly installments in  accordance with Section 2.10(a)(ii).  (h) For the avoidance of doubt, (x) with effect from the 2021-2 Incremental Term Loan Closing  Date, the 2021-2 Incremental Term Loans made in accordance with Amendment No. 6 shall constitute for  all purposes of this Agreement, a “Term Loan” made pursuant to this Agreement and all provisions of this  Agreement applicable to Term Loans shall be applicable to the 2021-2 Incremental Term Loans; provided,  that, with effect from the Amendment No. 6 Effective Date, the 2021-2 Incremental Term Loans  Commitment shall constitute an “Incremental Commitment” for all purposes of this Agreement, and all  provisions of this Agreement applicable to Incremental Term Commitments shall be applicable to the 2021- 2 Incremental Term Loan Commitments. Further, with effect from the 2021-2 Incremental Term Loan  Closing Date, the 2021-2 Incremental Term Loans (i) shall mature and shall become due and payable on  the 2021-2 Incremental Term Loan Maturity Date and (ii) shall be repaid in quarterly installments in  accordance with Section 2.10(a)(ii).  SECTION 2.10 Amortization of Term Loans.  (a) The Borrower shall repay Initial Term Loan Borrowings on the last Business Day of each  March, June, September and December (commencing on December 31, 2019) in the principal amount of  Initial Term Loans equal to one quarter of one percent (0.25%) of the original principal amount of such  Initial Term Loans made on the Effective Date, as adjusted from time to time pursuant to Section 2.11(f).  The Borrower shall repay 2020 Incremental Term Loan Borrowings on the last Business Day of each  March, June, September and December (commencing on June 30, 2020) in the principal amount of 2020  Incremental Term Loans equal to one quarter of one percent (0.25%) of the original principal amount of  such 2020 Incremental Term Loans made pursuant to Amendment No. 1, as adjusted from time to time  pursuant to Section 2.11(f). The Borrower shall repay 2021 Incremental Term Loan Borrowings on the last  Business Day of each March, June, September and December (commencing on September 30, 2021) in the  principal amount of 2021 Incremental Term Loans equal to one quarter of one percent (0.25%) of the  original principal amount of such 2021 Incremental Term Loans made pursuant to Amendment No. 5, as  adjusted from time to time pursuant to Section 2.11(f). The Borrower shall repay 2021-2 Incremental Term  Loan Borrowings on the last Business Day of each March, June, September and December (commencing  on March 31, 2022) in the principal amount of 2021-2 Incremental Term Loans equal to one quarter of one  percent (0.25%) of the original principal amount of such 2021-2 Incremental Term Loans made pursuant  to Amendment No. 6, as adjusted from time to time pursuant to Section 2.11(f).  To the extent not previously  paid, all Initial Term Loans, all 2020 Incremental Term Loans and all 2021 Incremental Term Loans shall  be due and payable by the Borrower on the Initial Term Loan Maturity Date.  (b) All repayment obligations under this Section 2.10 shall be reduced by the amount of any  prepayments made in accordance with Section 2.11 in the manner specified therein.  SECTION 2.11 Prepayment of Loans.  (a) The Borrower shall have the right at any time and from time to time to prepay any  Borrowing in whole or in part, without premium or penalty; provided that (x) in the event of (i) any  voluntary prepayment of Initial Term Loans, (ii) any replacement of a Non-Accepting Lender pursuant to  Section 2.24, (iii) any repayment of the obligations owing to, or replacement of, a Non-Consenting Lender  pursuant to Section 9.02(c), (iv) any prepayment in connection with any Repricing Transaction, the primary  purpose of which is to decrease the Effective Yield on such Initial Term Loans, (v) any of the mandatory  prepayments described in Section 2.11(h) from the proceeds of a Specified Debt Incurrence Prepayment  Event or (vi) any amendment of this Agreement resulting in a Repricing Transaction the primary purpose  





 






104  of which is to decrease the Effective Yield on the Initial Term Loans (including any replacement of a Non- Accepting Lender pursuant to Section 2.24 in connection therewith), the Borrower shall pay to the  Administrative Agent, for the account of each of the Lenders holding such Initial Term Loans, (I) during  the period from the Effective Date to and including the day immediately preceding the first anniversary of  the 2020 Incremental Closing Date, a prepayment premium of 5.00% of the principal amount of the Initial  Term Loans being prepaid or the principal amount of Initial Term Loans subject to the amendment  effectuating such Repricing Transaction and outstanding immediately prior to the effectiveness thereof, (II)  during the period commencing on the first anniversary of the 2020 Incremental Closing Date to and  including the day immediately preceding the second anniversary of the 2020 Incremental Closing Date, a  prepayment premium of 2.00% of the principal amount of the Initial Term Loans being prepaid or the  principal amount of the Initial Term Loans subject to the amendment effectuating such Repricing  Transaction and outstanding immediately prior to the effectiveness thereof, (III) during the period  commencing on the second anniversary of the 2020 Incremental Closing Date to and including the day  immediately preceding the third anniversary of the 2020 Incremental Closing Date, a prepayment premium  of 1.00% of the principal amount of the Initial Term Loans being prepaid or the principal amount of the  Initial Term Loans subject to the amendment effectuating such Repricing Transaction and outstanding  immediately prior to the effectiveness thereof and (IV) thereafter, no prepayment premium shall be due; (y)  in the event of (i) any voluntary prepayment of 2020 Incremental Term Loans, (ii) any replacement of a  Non-Accepting Lender pursuant to Section 2.24, (iii) any repayment of the obligations owing to, or  replacement of, a Non-Consenting Lender pursuant to Section 9.02(c), (iv) any prepayment in connection  with any Repricing Transaction, the primary purpose of which is to decrease the Effective Yield on such  2020 Incremental Term Loans, (v) any of the mandatory prepayments described in Section 2.11(h) from  the proceeds of a Specified Debt Incurrence Prepayment Event or (vi) any amendment of this Agreement  resulting in a Repricing Transaction the primary purpose of which is to decrease the Effective Yield on the  2020 Incremental Term Loans including any replacement of a Non-Accepting Lender pursuant to Section  2.24 in connection therewith, the Borrower shall pay to the Administrative Agent, for the account of each  of the Lenders holding such 2020 Incremental Term Loans, (I) during the period from the 2020 Incremental  Closing Date to and including the day immediately preceding the second anniversary of the 2020  Incremental Closing Date, a prepayment premium equal to the Applicable Premium multiplied by the  principal amount of the 2020 Incremental Term Loans being prepaid or the principal amount of 2020  Incremental Term Loans subject to the amendment effectuating such Repricing Transaction and outstanding  immediately prior to the effectiveness thereof, (II) during the period commencing on the second anniversary  of the 2020 Incremental Closing Date to and including the day immediately preceding the third anniversary  of the 2020 Incremental Closing Date, a prepayment premium of 2.00% of the principal amount of the 2020  Incremental Term Loans being prepaid or the principal amount of the 2020 Incremental Term Loans subject  to the amendment effectuating such Repricing Transaction and outstanding immediately prior to the  effectiveness thereof, (III) during the period commencing on the third anniversary of the 2020 Incremental  Closing Date to and including the day immediately preceding the fourth anniversary of the 2020  Incremental Closing Date, a prepayment premium of 1.00% of the principal amount of the 2020 Incremental  Term Loans being prepaid or the principal amount of the 2020 Incremental Term Loans subject to the  amendment effectuating such Repricing Transaction and outstanding immediately prior to the effectiveness  thereof and (IV) thereafter, no prepayment premium shall be due; and (z) in the event of (i) any voluntary  prepayment of 2021-2 Incremental Term Loans, (ii) any replacement of a Non-Accepting Lender pursuant  to Section 2.24, (iii) any repayment of the obligations owing to, or replacement of, a Non-Consenting  Lender pursuant to Section 9.02(c), (iv) any prepayment in connection with any Repricing Transaction, the  primary purpose of which is to decrease the Effective Yield on such 2021-2 Incremental Term Loans,  (v) any of the mandatory prepayments described in Section 2.11(h) from the proceeds of a Specified Debt  Incurrence Prepayment Event or (vi) any amendment of this Agreement resulting in a Repricing  Transaction the primary purpose of which is to decrease the Effective Yield on the 2021-2 Incremental  Term Loans including any replacement of a Non-Accepting Lender pursuant to Section 2.24 in connection  therewith, the Borrower shall pay to the Administrative Agent, for the account of each of the Lenders  





 






105  holding such 2021-2 Incremental Term Loans, (I) during the period from the 2021-2 Incremental Term  Loan Closing Date to and including the day immediately preceding the seven (7) month anniversary of the  2021-2 Incremental Term Loan Closing Date, a prepayment premium of 4.00% of the principal amount of  the 2021-2 Incremental Term Loans being prepaid or the principal amount of 2021-2 Incremental Term  Loans subject to the amendment effectuating such Repricing Transaction and outstanding immediately prior  to the effectiveness thereof, (II) during the period commencing on the date that is the seven (7) month  anniversary of the 2021-2 Incremental Term Loan Closing Date to and including the day immediately  preceding the one (1) year anniversary of the 2021-2 Incremental Term Loan Closing Date, a prepayment  premium of 5.00% of the principal amount of the 2021-2 Incremental Term Loans being prepaid or the  principal amount of the 2021-2 Incremental Term Loans subject to the amendment effectuating such  Repricing Transaction and outstanding immediately prior to the effectiveness thereof, (III) during the period  commencing on the day that is the one (1) year anniversary of the 2021-2 Incremental Term Loan Closing  Date to and including the day immediately preceding the eighteen (18) month anniversary of the 2021-2  Incremental Term Loan Closing Date, a prepayment premium of 4.00% of the principal amount of the 2021- 2 Incremental Term Loans being prepaid or the principal amount of the 2021-2 Incremental Term Loans  subject to the amendment effectuating such Repricing Transaction and outstanding immediately prior to  the effectiveness thereof, (IV) during the period commencing on the day that is the eighteen (18) month  anniversary of the 2021-2 Incremental Term Loan Closing Date to and including the day immediately  preceding the two (2) year anniversary of the 2021-2 Incremental Term Loan Closing Date, a prepayment  premium of 3.00% of the principal amount of the 2021-2 Incremental Term Loans being prepaid or the  principal amount of the 2021-2 Incremental Term Loans subject to the amendment effectuating such  Repricing Transaction and outstanding immediately prior to the effectiveness thereof and (V) thereafter, no  prepayment premium shall be due.  Prepayments made pursuant to this Section 2.11(a) shall be applied in  accordance with the applicable provisions of Section 2.11(e) and Section 2.11(f).  (b) In the event and on each occasion that the aggregate Revolving Exposures (or the  Revolving Exposures of any Class of Revolving Commitments) exceeds the aggregate Revolving  Commitments (or the Revolving Commitments of such Class), the Borrower shall prepay Revolving Loans  (or the Revolving Loans of such Class, as applicable) or Swingline Loans (or, if no such Loans are  outstanding, deposit Cash Collateral in an account with the Administrative Agent pursuant to  Section 2.05(j)) in an aggregate amount necessary to eliminate such excess.  (c) In the event and on each occasion that any Net Proceeds are received by or on behalf of  Holdings, the Borrower or any Restricted Subsidiary in respect of any Prepayment Event, the Borrower  shall, within five Business Days after such Net Proceeds are received, offer to prepay (or, in the case of a  Prepayment Event described in clause (b) of the definition of the term “Prepayment Event,” within three  Business Days after such Net Proceeds are received, offer to prepay) by delivering written notice to the  Administrative Agent in accordance with Section 2.11(e)(ii), Term Loans in an aggregate amount equal to  100% of such Net Proceeds; provided that, in the case of any Disposition/Casualty Prepayment Event, if  the Borrower or the Restricted Subsidiaries invest (or commit to invest) the Net Proceeds from such event  (or a portion thereof) within 12 months after receipt of such Net Proceeds in the Borrower and the Restricted  Subsidiaries (including any Investments permitted under Section 6.04 (other than 6.04(a))), then no  prepayment shall be required pursuant to this paragraph in respect of such Net Proceeds in respect of such  event (or the applicable portion of such Net Proceeds, if applicable) except to the extent of any such Net  Proceeds therefrom that have not been so invested (or committed to be invested) by the end of such 12- month period (or if committed to be so invested within such 12-month period, have not been so invested  within 180 days after the 12-month period that follows receipt thereof), at which time a prepayment shall  be required in an amount equal to such Net Proceeds that have not been so invested (or committed to be  invested); provided further that, in the case of a Disposition/Casualty Prepayment Event, the Borrower may  use a portion of such Net Proceeds to prepay or repurchase any other Indebtedness that is secured by Liens  on the Collateral ranking on an equal priority basis (but without regard to control of remedies) with the  





 






106  Liens on the Collateral securing the Secured Obligations to the extent such other Indebtedness and the Liens  securing such Indebtedness are permitted hereunder and the documentation governing such other  Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Prepayment  Event, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds and (y)  a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the  denominator of which is the aggregate outstanding principal amount of Term Loans and such other  Indebtedness.  Prepayments made, or required to be offered to be made, pursuant to this Section 2.11(c)  shall be offered and, if applicable, applied, in accordance with the applicable provisions of Section 2.11(e)  and Section 2.11(f).  (d) Following the end of each fiscal year of the Borrower, commencing with the fiscal year  ending December 31, 2020 (each such applicable fiscal year, an “Excess Cash Flow Period”), the Borrower  shall offer to prepay Term Loans in an aggregate amount equal to the ECF Percentage (after giving effect  to any adjustment pursuant to the Permitted ECF Recalculation Considerations (as defined below)) of  Excess Cash Flow for such Excess Cash Flow Period; provided that (A) such amount shall be reduced, at  the option of the Borrower, by the aggregate amount (other than any amount applied to reduce the  prepayment required under this paragraph in respect of any prior year) of (i) prepayments of Term Loans  (and, to the extent the Revolving Commitments are permanently reduced in a corresponding amount  pursuant to Section 2.08, Revolving Loans) made pursuant to Section 2.11(a) during such fiscal year or  after such fiscal year and prior to the time such prepayment is due as provided below, (ii) voluntary  prepayments of Indebtedness under Incremental Facilities, Incremental Equivalent Debt and/or Credit  Agreement Refinancing Indebtedness, in each case, that are secured by Liens on the Collateral that rank on  an equal priority basis (but without regard to control of remedies) with the Liens on the Collateral securing  the Secured Obligations during such fiscal year or after such fiscal year and prior to the time such  prepayment is due, (in each case of clause (i) and (ii), excluding all such prepayments funded with the  proceeds of other long-term Indebtedness (other than revolving Indebtedness), (any payments described in  the foregoing clause (i) through (ii) of this proviso made after the end of the applicable Excess Cash Flow  Period but prior to the making of the applicable prepayment in respect of such Excess Cash Flow Period,  an “After Year End Payment”); and (B) following the making of any After Year End Payment, (i) the Total  Net Cash Leverage Ratio shall be recalculated giving pro forma effect to such After Year End Payment as  if such payment were made during the applicable Excess Cash Flow Period and the ECF Percentage for  purposes of making such Excess Cash Flow prepayment shall be determined by reference to such  recalculated Total Net Cash Leverage Ratio and (ii) such After Year End Payment shall not reduce the  required amount of any subsequent Excess Cash Flow payment in another Excess Cash Flow Period (the  foregoing clauses (A) and (B)), the “Permitted ECF Recalculation Considerations”).  Notwithstanding  anything to the contrary in the foregoing, the Borrower may use a portion of such amount of Excess Cash  Flow (as so reduced) in respect of any such fiscal year that would otherwise be required to be applied to  prepay Term Loans to prepay or repurchase any other Indebtedness that is secured by Liens on the Collateral  that rank on an equal priority basis (but without regard to control of remedies) with the Liens on the  Collateral securing the Secured Obligations to the extent such other Indebtedness and the Liens securing  such other Indebtedness are permitted hereunder and the documentation governing such other Indebtedness  requires such a prepayment or repurchase thereof with Excess Cash Flow, in each case in an amount not to  exceed the product of (A) the amount of Excess Cash Flow (as so reduced) in respect of such fiscal year  otherwise required to be applied to prepay Term Loans (without giving effect to this sentence) and (B) a  fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the  denominator of which is the aggregate outstanding principal amount of Term Loans and such other  Indebtedness.  Each prepayment pursuant to this paragraph shall be offered to be made by giving written  notice to the Administrative Agent in accordance with Section 2.11(e)(ii) on or before the date that is five  Business Days after the date on which financial statements are required to be delivered pursuant to Section  5.01(a) with respect to the Excess Cash Flow Period for which Excess Cash Flow is being calculated.  Any  Excess Cash Flow payment pursuant to this clause (d) shall only be required with respect to amounts in  





 






107  excess of $2,500,000 for any Excess Cash Flow Period (and only such excess amount shall be applied to  the payment thereof).  Prepayments made, or required to be offered to be made, pursuant to this Section  2.11(d) shall be offered and, if applicable, applied, in accordance with the applicable provisions of Section  2.11(e) and Section 2.11(f).  (e) Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrower  shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the applicable  Notice of Prepayment.  (i) (A) subject to the provisions of Section 2.11(e)(ii) below, each prepayment of  Term Loans required to be made under Section 2.11(c) (other than with respect to a Specified Debt  Incurrence Prepayment Event, which is subject to clause (B) below) and Section 2.11(d) shall be  allocated to the Classes of Term Loans outstanding, pro rata based on the aggregate principal  amount of outstanding Borrowings due in respect of each such Class of Term Loans (subject to any  Class of Term Loans (including any Class of Extended Term Loans) having agreed to receive a less  than pro rata share of any such mandatory prepayment and taking into account any reduction in the  amount of any required Excess Cash Flow payment to any Class of Term Loans), shall be applied  pro rata to Lenders within each Class, based upon the outstanding principal amounts owing to each  such Lender under each such Class of Term Loans and shall be applied to reduce such scheduled  repayment amounts within each such Class in accordance with Section 2.11(f)(ii) and (B) each  prepayment of Term Loans elected by the Borrower to be made pursuant to Section 2.11(a) or  required to be made by Section 2.11(c) in connection with a Specified Debt Incurrence Prepayment  Event shall be allocated to the Classes of Term Loans outstanding, pro rata based on the aggregate  principal amount of outstanding Borrowings due in respect of each such Class of Term Loans  (subject to any Class of Term Loans (including any Class of Extended Term Loans) having agreed  to receive a less than pro rata share of any such mandatory prepayment and taking into account any  reduction in the amount of any required Excess Cash Flow payment to any Class of Term Loans),  shall be applied pro rata to Lenders within each such Class, based upon the outstanding principal  amounts owing to each such Lender under each such Class of Term Loans and shall be applied to  reduce such scheduled repayment amounts within each such Class in accordance with Section  2.11(f)(i) (for the avoidance of doubt, solely as between any Existing Term Loan Class and the  related Class of Extended Term Loans (and without affecting the pro rata application among all  Classes of outstanding Term Loans other than such Existing Term Loan Class and such related  Class of Extended Term Loans) the Borrower may (i) prepay Term Loans of an Existing Term  Loan Class pursuant to Section 2.11(a) or any Specified Debt Incurrence Prepayment Event without  any requirement to prepay Extended Term Loans that were converted or exchanged from such  Existing Term Loan Class and (ii) prepay Extended Term Loans pursuant to Section 2.11(a) or  pursuant to any Specified Debt Incurrence Prepayment Event without any requirement to prepay  Term Loans of an Existing Term Loan Class that were converted or exchanged for such Extended  Term Loans and in the event that the Borrower does not specify the Classes of Term Loans to be  prepaid, the Borrower shall be deemed to have elected that such proceeds be applied to reduce the  repayment amounts among such Term Loan Classes on a pro rata basis).  (ii) With respect to each offer of prepayment required by Section 2.11(c) and Section  2.11(d), (A) the Borrower will give the Administrative Agent written notice substantially in the  form of Exhibit H hereto of any such offer to make a mandatory prepayment of Term Loans within  the time periods specified in Section 2.11(c) and Section 2.11(d), prior to such offer of prepayment  and request that the Administrative Agent provide notice of such offer to make a mandatory  prepayment to each Lender and the Administrative Agent will promptly notify each Lender,  (B) each Lender of Term Loans will have the right to refuse any such offer of prepayment by giving  written notice (each, a “Rejection Notice”) of such refusal to the Administrative Agent and the  





 






108  Borrower no later than 3:00 p.m. (New York City time) one Business Day after the date the  Administrative Agent delivers notice of such offer of prepayment to such Lender, and to the extent  any such offer of prepayment is so refused, the aggregate amount of the offered prepayment that  would have been applied to prepay Term Loans of any such Class but was so declined shall be  retained by the Borrower and the Restricted Subsidiaries (such amounts, “Retained Declined  Proceeds”) and (C) the Borrower will make all such prepayments not so refused upon the tenth  Business Day after the Administrative Agent delivers notice of such offer of prepayment to the  Lenders.  If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time  frame specified above, any such failure will be deemed an acceptance of the total offered amount  of such mandatory prepayment of Term Loans.  For the avoidance of doubt, this Section 2.11(e)(ii)  does not apply to any prepayment pursuant to Section 2.11(c) in respect of a Specified Debt  Incurrence Prepayment Event, which prepayment shall be mandatory and may not be declined,  waived or refused.  (f) Application to Term Loans.  (i) With respect to each prepayment of Term Loans elected to be made by the  Borrower pursuant to Section 2.11(a) or required to be made pursuant to a Specified Debt  Incurrence Prepayment Event, such prepayments shall be applied on a pro rata basis to the Lenders  within any Class entitled to receive such prepayment to reduce scheduled repayment amounts in  such order as the Borrower may specify (or, if not specified, in direct order of maturity) and the  Borrower may designate the Types of Loans that are to be prepaid and the specific Borrowing(s)  pursuant to which made; provided that the Borrower pays any amounts, if any, required to be paid  pursuant to Section 2.16 with respect to prepayments of Eurocurrency Loans made on any date  other than the last day of the applicable Interest Period.  In the absence of a designation by the  Borrower as described in the preceding sentence, the Administrative Agent, shall, subject to the  above, make such designation in its reasonable discretion with a view, but no obligation, to  minimize breakage costs owing under Section 2.16.  (ii) After giving effect to the provisions of Section 2.11(e)(ii), with respect to each  prepayment of Term Loans by the Borrower required to be made pursuant to Section 2.11(c) (other  than in respect of a Specified Debt Incurrence Prepayment Event) or Section 2.11(d), such  prepayments shall be applied on a pro rata basis to the Lenders within any Class entitled to receive  such prepayment to reduce scheduled repayment amounts in direct order of maturity and  irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans;  provided that, if no Lender exercises the right to refuse an offered mandatory prepayment of the  Term Loans pursuant to Section 2.11(e)(ii), then, with respect to such mandatory prepayment, the  amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to  the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner  that minimizes breakage costs owing under Section 2.16.  (g) Application to Revolving Loans.  With respect to each prepayment of Revolving Loans,  Other Revolving Loans and Replacement Revolving Loans elected by the Borrower pursuant to Section  2.11(a) or required by Section 2.11(b), the Borrower may designate (i) the Class and Types of Loans that  are to be prepaid and the specific Borrowing(s) pursuant to which such Loans were made and (ii) the Class  of Revolving Loans, Other Revolving Loans or Replacement Revolving Loans to be prepaid; provided that  any prepayment of Revolving Loans while any Class A Revolving Commitments are outstanding shall be  made pro rata between the Class A Revolving Loans and the Class B Revolving Loans in proportion to the  respective Revolving Commitments under the Class A Revolving Facility and the Class B Revolving  Facility (except that any prepayment made in connection with a reduction of the Class A Revolving  Commitments pursuant to Section 2.08 may be applied solely to the Class A Revolving Loans and allocated  





 






109  to the Class A Revolving Loans based on the amount of the reduction in the Class A Revolving  Commitments of each applicable Lender thereunder); provided further that (x) Eurocurrency Loans may be  designated for prepayment pursuant to this Section 2.11 only on the last day of an Interest Period applicable  thereto unless all Eurocurrency Loans with Interest Periods ending on such date of required prepayment  and all ABR Loans have been paid in full; (y) each prepayment of any Loans made pursuant to a Borrowing  shall be applied pro rata among such Loans of such Class (except that any prepayment made in connection  with a reduction of the Commitments of such Class pursuant to Section 2.08 shall be applied pro rata based  on the amount of the reduction in the Commitments of such Class of each applicable Lender); and (z)  notwithstanding the provisions of the preceding clause (y), at the option of the Borrower, no prepayment  made pursuant to Section 2.11(a) or Section 2.11(b) of Revolving Loans, Other Revolving Loans or  Replacement Revolving Loans of any Class shall be applied to the Loans of any Defaulting Lender.  In the  absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent,  shall, subject to the above, make such designation in its reasonable discretion with a view, but no obligation,  to minimize breakage costs owing under Section 2.16.  (h) The Borrower shall notify the Administrative Agent (and in the case of prepayment of a  Swingline Loan, the Swingline Lender) of any optional prepayment pursuant to Section 2.11(a) by  delivering a notice of such prepayment substantially in the form of Exhibit H hereto (the “Notice of  Prepayment”) to the Administrative Agent (i) in the case of prepayment of a Eurocurrency Borrowing, not  later than 2:00 p.m., New York City time, three Business Days prior to the date of prepayment or (ii) in the  case of prepayment of an ABR Borrowing, not later than 2:00 p.m., New York City time, on the Business  Day before the date of such prepayment.  Each such notice shall specify the prepayment date and the  principal amount of each Borrowing or portion thereof to be prepaid.  In the case of any Notice of  Prepayment with respect to any optional or mandatory prepayment, promptly following receipt of any such  notice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the  Lenders of the contents thereof.  Each partial prepayment of any Borrowing shall be in an amount that  would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02,  except as necessary to apply fully the required amount of a mandatory prepayment.  Prepayments shall be  accompanied by accrued interest to the extent required by Section 2.13.  At the Borrower’s election in  connection with any prepayment pursuant to this Section 2.11, such prepayment shall not be applied to any  Term Loan or Revolving Loan of a Defaulting Lender and shall be allocated ratably among the relevant  non-Defaulting Lenders.  (i) Notwithstanding any other provisions of Section 2.11(c) or Section 2.11(d), (A) to the  extent that any of or all the Net Proceeds of any Prepayment Event set forth in clause (a) of the definition  thereof by a Foreign Subsidiary or an FSHCO giving rise to a prepayment pursuant to Section 2.11(c) (a  “Foreign Subsidiary/FSHCO Prepayment Event”) or Excess Cash Flow of a Foreign Subsidiary or FSHCO  giving rise to a payment pursuant to Section 2.11(d) are prohibited by or would violate or conflict with any  Requirement of Law from being repatriated or distributed to the Borrower or would conflict with the  fiduciary duties of such Foreign Subsidiary or FSHCO’s directors, or result in, or could reasonably be  expected to result in, a material risk of personal or criminal liability for any officer, director, employee,  manager, member or management or consultant of such Foreign Subsidiary or FSHCO, the portion of such  Net Proceeds or Excess Cash Flow so affected will not be required to be offered to prepay Term Loans at  the times provided in Section 2.11(c) or Section 2.11(d), as the case may be, and such amounts may be  retained by the applicable Foreign Subsidiary or FSHCO so long, but only so long, as the applicable  Requirement of Law will not permit repatriation or distribution to the Borrower (the Borrower hereby  agreeing to cause the applicable Foreign Subsidiary or FSHCO to use commercially reasonable efforts to  promptly take all actions required by the applicable Requirement of Law to permit such repatriation or  distribution), and once such repatriation or distribution of any of such affected Net Proceeds or Excess Cash  Flow is permitted under the applicable Requirement of Law, such repatriation or distribution will be  promptly effected and such repatriated or distributed Net Proceeds or Excess Cash Flow will be promptly  





 






110  (and in any event not later than three Business Days after such repatriation or distribution) offered to the  prepayment of (net of additional taxes payable or reserved against as a result thereof) the Term Loans  pursuant to Section 2.11(c) or Section 2.11(d), as applicable, (B) to the extent that and for so long as the  Borrower has determined reasonably and in good faith that repatriation or distribution of any of or all the  Net Proceeds of any Foreign Subsidiary/FSHCO Prepayment Event or Excess Cash Flow would have a  material adverse tax consequence for the Borrower, any of its Subsidiaries, any Parent Entity or direct or  indirect equityholder of the Borrower or such Parent Entity (taking into account any foreign tax credit or  benefit actually realized in connection with such repatriation or distribution), including any withholding  tax, with respect to such Net Proceeds or Excess Cash Flow if such amount were repatriated or distributed  as a dividend, the Net Proceeds or Excess Cash Flow so affected will not be required to be offered to the  prepayment of Term Loans (or other Loans required to be prepaid) at the times provided in Section 2.11(c)  or Section 2.11(d), as the case may be, and such amounts may be retained by the applicable Foreign  Subsidiary or FSHCO; provided that when the Borrower determines reasonably and in good faith that  repatriation or distribution of any of or all the Net Proceeds of any Foreign Subsidiary/FSHCO Prepayment  Event or Excess Cash Flow would no longer have a material adverse tax consequence (taking into account  any foreign tax credit or benefit actually realized in connection with such repatriation or distribution) with  respect to such Net Proceeds or Excess Cash Flow if such amount were repatriated or distributed as a  dividend, such Net Proceeds or Excess Cash Flow shall be promptly (and in any event not later than three  Business Days after such repatriation or distribution) applied (net of additional taxes payable or reserved  against as a result thereof) or offered to the prepayment of the Term Loans pursuant to Section 2.11(c) or  Section 2.11(d), as applicable and (C) in connection with any prepayment attributable to any Joint Venture,  to the extent that repatriation or distribution of any or all of the Net Proceeds of any Foreign  Subsidiary/FSHCO Prepayment Event or Excess Cash Flow of a Foreign Subsidiary or FHSCO giving rise  to a prepayment pursuant to Section 2.11(c) or Section 2.11(d) would violate any Organizational Document  of any such Joint Venture (or any relevant shareholders’ or similar agreement) existing on the Effective  Date or the date of Investment in such Joint Venture (so long as such restrictions in such Organizational  Documents were not entered into for purposes of circumventing such Joint Venture’s obligations to make  any payment in respect of such Excess Cash Flow or a Foreign Subsidiary/FSHCO Prepayment Event), in  each case if the amount subject to the relevant prepayment were upstreamed or transferred as a distribution  or dividend the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be  offered to the prepayment of the Term Loans at the times provided in Section 2.11(c) or Section 2.11(d), as  the case may be, and such amounts may be retained by the applicable Foreign Subsidiary or FSHCO so  long, but only so long, as the applicable Organizational Documents will not permit repatriation or  distribution to the Borrower, and once such repatriation or distribution of any of such affected Net Proceeds  or Excess Cash Flow is permitted under the applicable Organizational Documents, such repatriation or  distribution will be promptly effected and such repatriated or distributed Net Proceeds or Excess Cash Flow  will be promptly (and in any event not later than three Business Days after such repatriation or distribution)  applied (net of additional taxes payable or reserved against as a result thereof) offered to the prepayment of  the Term Loans pursuant to Section 2.11(c) or Section 2.11(d), as applicable.  SECTION 2.12 Fees.  (a) The Borrower agrees to pay to the Administrative Agent in Dollars for the account of each  Revolving Lender a commitment fee, which shall accrue at the rate of 0.50% per annum on the average  daily unused amount of the Revolving Commitment of such Lender during the period from and including  the Effective Date to but excluding the date on which the Revolving Commitments terminate.  Accrued  commitment fees shall be payable in arrears on the last Business Day of March, June, September and  December of each year and on the date on which the Revolving Commitments terminate, commencing on  the first such date to occur after the date hereof.  All commitment fees shall be computed on the basis of a  year of 360 days and shall be payable for the actual number of days elapsed (including the first day but  excluding the last day).  For purposes of computing commitment fees, a Revolving Commitment of a  





 






111  Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of  such Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose).  (b) The Borrower agree to pay (i) to the Administrative Agent in Dollars for the account of  each Revolving Lender a participation fee with respect to its participations in Letters of Credit, which shall  accrue at the Applicable Rate used to determine the interest rate applicable to Eurocurrency Revolving  Loans on the daily balance of such Lender’s LC Exposure (excluding any portion thereof attributable to  unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding  the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such  Lender ceases to have any LC Exposure, (ii) to each Issuing Bank in Dollars a fronting fee, which shall  accrue at 0.125% per annum or such other rate as may be separately agreed to by the relevant Issuing Bank  and the Borrower on the average daily balance of the LC Exposure attributable to Letters of Credit issued  by such Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements)  during the period from and including the Effective Date to but excluding the later of the date of termination  of the Revolving Commitments and the date on which there ceases to be any LC Exposure, and (iii) such  Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter  of Credit or processing of drawings thereunder.  (c) Participation fees and fronting fees accrued through and including the last Business Day of  March, June, September and December of each year shall be payable on the last Business Day of each such  month, commencing on the first such date to occur after the Effective Date, provided that all such fees shall  be payable on the date on which the Revolving Commitments terminate and any such fees accruing after  the date on which the Revolving Commitments terminate shall be payable on demand.  Any other fees  payable to an Issuing Bank pursuant to this paragraph shall be payable in accordance with such Issuing  Bank’s applicable procedures relating thereto.  All participation fees and fronting fees shall be computed  on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the  first day but excluding the last day).  (d) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable  in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.  (e) All fees payable hereunder shall be paid on the dates due, in immediately available funds,  to the Administrative Agent (or to an Issuing Bank, in the case of fees payable to it) for distribution, in the  case of commitment fees and participation fees, to the Revolving Lenders entitled thereto.  Except as may  otherwise be separately agreed, fees paid hereunder shall not be refundable under any circumstances.  (f) Notwithstanding the foregoing, and subject to Section 2.22, the Borrower shall not be  obligated to pay any amounts to any Defaulting Lender pursuant to this Section 2.12, and any fees that  would otherwise be payable to a Defaulting Lender under clause (i) of Section 2.12(b) shall, to the extent  the LC Exposure of such Defaulting Lender shall have been reallocated pursuant to Section 2.22(a)(iv), be  paid to the non-Defaulting Lenders in respect of the amounts of such LC Exposure for which they shall be  liable from time to time.  (g) The Borrower agrees to pay to the Administrative Agent, on behalf of each Lender holding  any Term Loans (other than the 2021 Incremental Term Loans or the 2021-2 Incremental Term Loans)  and/or Revolving Commitments as of the Amendment No. 8 Effective Date that delivered an executed  signature page to the Amendment No. 8, and released such signature page, on or prior to 5:00 p.m. (New  York time) on August 19, 2022, a non-refundable consent fee in an amount equal to 0.25% multiplied by  the sum of the aggregate principal amount of such Term Loans and/or Revolving Commitments, in either  case as of the Amendment No. 8 Effective Date, which consent fee shall be earned in full on the Amendment  No. 8 Effective Date and payable in full (i) with respect to such Term Loans, on the earlier of (x) the date  





 






112  of prepayment or repayment in full of such Term Loans, (y) the date of acceleration of such Term Loans  pursuant to Section 7.01 and (z) the Initial Term Loan Maturity Date and (ii) with respect to the Revolving  Commitments of any Class, on the earlier of (w) the date of prepayment or repayment in full of the  Revolving Loans of such Class and termination of the Revolving Commitments of such Class, (x) the date  of the voluntary termination of the Revolving Commitments of such Class pursuant to Section 2.08(b),  (y) the date of acceleration of such Revolving Loans of such Class and termination of the Revolving  Commitments of such Class pursuant to Section 7.01 and (z) the Revolving Maturity Date.  SECTION 2.13 Interest.  (a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear  interest at the Alternate Base Rate plus the Applicable Rate.   (b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted  LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.  (c) [Reserved].  (d) Notwithstanding the foregoing, after the occurrence and continuance of an Event of Default  pursuant to Section 7.01(a), (b), (h) or (i), if any principal of or interest on any Loan or any premium, fee  or other amount by the Borrower hereunder is not paid when due, whether at stated maturity, upon  acceleration or otherwise, the relevant overdue amount shall bear interest, after as well as before judgment,  at a rate per annum equal to (i) in the case of any overdue principal of any Loan, 2.00% per annum plus the  rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the  case of any other amount (including overdue interest), 2.00% per annum plus the rate applicable to  Revolving Loans that are ABR Loans as provided in paragraph (a) of this Section; provided that no amount  shall be payable pursuant to this Section 2.13(d) to a Defaulting Lender so long as such Lender shall be a  Defaulting Lender; provided further that, no amounts shall accrue pursuant to this Section 2.13(d) on any  reimbursement obligation in respect of any LC Disbursement or other amount payable to a Defaulting  Lender so long as such Lender shall be a Defaulting Lender (it being understood that interest on such  amounts shall accrue at the non-default rates otherwise applicable thereto).  (e) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date  for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments,  provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be payable on demand,  (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR  Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal  amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the  event of any conversion of any Eurocurrency Loan prior to the end of the current Interest Period therefor,  accrued interest on such Loan shall be payable on the effective date of such conversion.  (f) All computations of interest for ABR Loans (when the Alternate Base Rate is based on the  Prime Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days  elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual  days elapsed.  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not  accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided  that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.18, bear interest  for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be  conclusive and binding for all purposes, absent manifest error.  SECTION 2.14 Alternate Rate of Interest.  





 






113  (a) If at least two Business Days prior to the commencement of any Interest Period for a  Eurocurrency Borrowing:  (i) the Administrative Agent determines (which determination shall be conclusive  absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted  LIBO Rate for such Interest Period; or  (ii) the Administrative Agent is advised by the Required Lenders that the Adjusted  LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders  of making or maintaining their Loans included in such Borrowing for such Interest Period (in each  case with respect to the Loans impacted by this clause (ii) or clause (i) above, “Impacted Loans”),  then the Administrative Agent shall give written notice thereof to the Borrower and the Lenders by hand  delivery, facsimile or other electronic transmission as promptly as practicable thereafter and, until the  Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such  notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to,  or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective and (ii) such  Borrowing shall be made as an ABR Borrowing and the utilization of the LIBO Rate component in  determining the Alternate Base Rate shall be suspended; provided, however, that, in each case, the Borrower  may revoke any Borrowing Request that is pending when such notice is received.  (b) Notwithstanding any of the provisions in this Agreement to the contrary, if the Borrower  and the Administrative Agent reasonably determine in good faith, or the Borrower and Required Lenders  notify the Administrative Agent, that (1) an interest rate is not ascertainable pursuant to the provisions of  the definition of “LIBO Rate” and the inability to ascertain such rate is unlikely to be temporary, (2) the  London Interbank Offered Rate as described in clause (i) of the definition of “LIBO Rate” shall no longer  be made available or used for determining the interest rate of loans or (3) syndicated leveraged loans of this  type in the United States are currently being executed or amended (as applicable) to incorporate or adopt  new benchmark interest rates to replace the London Interbank Offered Rate, the “LIBO Rate” shall be an  alternate rate that is reasonably commercially practicable for the Administrative Agent to administer (as  determined by the Administrative Agent in its reasonable discretion) that shall include appropriate  mathematical or other adjustments to minimize any changes to pricing in effect at the time of selection of  such alternate rate of interest (and, for the avoidance of doubt, such alternate rate of interest as so modified  shall not reduce the Applicable Rate in effect at the time of selection of such alternate rate of interest) and  will be an alternate rate of interest established by the Administrative Agent and the Borrower, so long as  the Lenders shall have received at least five Business Days’ prior written notice thereof (the “Notice  Period”), in which case, the Administrative Agent and the Borrower shall enter into an amendment to this  Agreement to reflect such alternate rate of interest and make such other related changes to this Agreement  as may be applicable, including any Successor Rate Conforming Changes; provided that such alternate rate  of interest shall not apply (and any such amendment shall not be effective) to the extent the Administrative  Agent has received a written objection within the Notice Period from the Required Lenders (any such  alternate rate of interest so established in accordance with the foregoing provisions of this clause (d), the  “Successor Benchmark Rate”); provided that any such amendment shall become effective without any  further action or consent of any other party to this Agreement, notwithstanding anything to the contrary in  Section 9.02, provided, further, that, until such Successor Benchmark Rate has been determined pursuant  to this paragraph, (A) any request for Borrowing, the conversion of any Borrowing to, or continuation of  any Borrowing as, a Eurocurrency Borrowing shall be ineffective; (B) in the case of any affected  Eurocurrency Borrowing, such Borrowing shall be converted to an ABR Borrowing and (C) the LIBO Rate  component shall no longer be utilized in determining the Alternate Base Rate.  Notwithstanding anything  else herein, any Successor Benchmark Rate shall provide that in no event shall such Successor Benchmark  Rate be less than zero for purposes of this Agreement.  For the purpose hereof, “Successor Rate Conforming  





 






114  Changes” shall mean such changes as may be necessary to reflect the available interest periods for the  alternate rate, including conforming the definition of Alternate Base Rate, Interest Period, the timing and  frequency of determining rates and making payments of interest and other administrative matters as may  be reasonably agreed by the Borrower and the Administrative Agent.  SECTION 2.15 Increased Costs.  (a) If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,  insurance charge or similar requirement against assets of, deposits with or for the account of, or  credit extended by, any Lender or any Issuing Bank (except any such reserve requirement reflected  in the Adjusted LIBO Rate); or  (ii) impose on any Lender or any Issuing Bank or the London interbank market any  other condition, cost or expense (other than with respect to Taxes) affecting this Agreement or  Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein; or  (iii) subject any Lender or any Issuing Bank to any Taxes on its Loans, letters of credit,  Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable  thereto;  and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Bank of making  or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to  such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of  maintaining its obligation to participate in or issue any Letter of Credit) or to reduce the amount of any sum  received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or  otherwise), then, from time to time upon request of such Lender or Issuing Bank, the Borrower will pay to  such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate  such Lender or Issuing Bank, as the case may be, for such increased costs actually incurred or reduction  actually suffered, provided that the Borrower shall not be liable for such compensation if, in the case of  requests for reimbursement under clause (ii) above resulting from a market disruption, (A) the relevant  circumstances are not generally affecting the banking market or (B) the applicable request has not been  made by Lenders constituting Required Lenders; provided, further, that to the extent any such costs or  reductions are incurred by any Lender as a result of any requests, rules, guidelines or directives enacted or  promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or under  Basel III, then such Lender shall be compensated pursuant to this Section 2.15(a) only to the extent such  Lender is imposing such charges on similarly situated borrowers where the terms of other syndicated credit  facilities permit it to impose such charges.  Notwithstanding the foregoing, this paragraph will not apply to  (A) Indemnified Taxes, (B) Other Taxes or (C) Excluded Taxes.  (b) If any Lender or Issuing Bank determines that any Change in Law regarding capital or  liquidity requirements has the effect of reducing the rate of return on such Lender’s or Issuing Bank’s  capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of  this Agreement or the Loans made by, or participations in Letters of Credit or Swingline Loans held by,  such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender  or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such  Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such  Lender’s or Issuing Bank’s holding company with respect to capital adequacy and liquidity), then, from  time to time upon request of such Lender or Issuing Bank contemplated by clause (c) below, the Borrower  will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will  





 






115  compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such  reduction actually suffered.  (c) Any Lender or an Issuing Bank requesting compensation under this Section 2.15 shall be  required to deliver a certificate to the Borrower, (i) setting forth the amount or amounts necessary to  compensate such Lender or Issuing Bank or its holding company in reasonable detail, as the case may be,  as specified in paragraph (a) or (b) of this Section, (ii) setting forth, in reasonable detail, the manner in  which such amount or amounts were determined and (iii) certifying that such Lender or Issuing Bank is  generally charging such amounts to similarly situated borrowers, which certificate shall be conclusive  absent manifest error.  Unless subject to dispute, the Borrower shall pay such Lender or Issuing Bank, as  the case may be, the amount shown as due on any such certificate within 15 days after receipt thereof.  (d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation  pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand  such compensation, provided that the Borrower shall not be required to compensate a Lender or Issuing  Bank pursuant to this Section for any increased costs incurred or reductions suffered more than 180 days  prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change  in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention  to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased  costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the  period of retroactive effect thereof.  SECTION 2.16 Break Funding Payments.  In the event of (a) the payment of any principal of  any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto, (b) the conversion  of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the failure  to borrow, convert, continue or prepay any Revolving Loan or Term Loan on the date specified in any  notice delivered pursuant hereto (regardless of whether such notice is revoked) or (d) the assignment of any  Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a request  by the Borrower pursuant to Section 2.19, Section 2.24(h) or Section 9.02(c), then, in any such event, the  Borrower shall, after receipt of a written request by any Lender affected by any such event (which request  shall set forth in reasonable detail the basis for requesting such amount), compensate each Lender for the  actual loss, cost and expense incurred by such Lender attributable to such event (other than loss of profit).   Any Lender requesting compensation under this Section 2.16 shall be required to deliver a certificate to the  Borrower setting forth any amount or amounts that such Lender is entitled to receive pursuant to this  Section, the basis therefor and, in reasonable detail and the manner in which such amount or amounts were  determined, which certificate shall be conclusive absent manifest error.  Unless subject to dispute, the  Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after  receipt of such demand.  Notwithstanding the foregoing, this Section 2.16 will not apply to losses, costs or  expenses resulting from Taxes, as to which Section 2.17 shall govern.  SECTION 2.17 Taxes.  (a) Any and all payments by or on account of any obligation of any Loan Party under any Loan  Document shall be made free and clear of and without deduction for any Taxes, provided that if the  applicable Withholding Agent shall be required by applicable Requirements of Law (as determined in the  good faith discretion of the applicable Withholding Agent) to deduct any Taxes from such payments, then  (i) the applicable Withholding Agent shall make such deductions, (ii) the applicable Withholding Agent  shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with  applicable Requirements of Law and (iii) if the Tax in question is an Indemnified Tax or Other Tax, the  amount payable by the applicable Loan Party shall be increased as necessary so that after all required  deductions have been made (including deductions applicable to additional amounts payable under this  





 






116  Section 2.17) the Lender (or, in the case of a payment received by the Administrative Agent for its own  account, the Administrative Agent) receives an amount equal to the sum it would have received had no such  deductions been made.  (b) Without limiting the provisions of paragraph (a) above, the Loan Parties shall timely pay  to the relevant Governmental Authority in accordance with Requirements of Law, or at the option of the  Administrative Agent timely reimburse it for the payment of, any Other Taxes.  (c) The Loan Parties shall indemnify the Administrative Agent and each Lender, within 10  days after demand therefor, for the full amount of any Indemnified Taxes and any Other Taxes payable or  paid by, or required to be withheld or deducted from a payment to, the Administrative Agent or such Lender,  as the case may be (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to  amounts payable under this Section 2.17) and any reasonable expenses arising therefrom or with respect  thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted  by the relevant Governmental Authority.  A certificate setting forth as to the amount of such payment or  liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent) or by the  Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.  (d) As soon as practicable after any payment of any Taxes by a Loan Party to a Governmental  Authority pursuant to this Section 2.17, such Loan Party shall deliver to the Administrative Agent the  original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment,  a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to  the Administrative Agent.  (e) Each Lender shall deliver to the Borrower and the Administrative Agent, at the time or  times reasonably requested by the Borrower or the Administrative Agent, such properly completed and  executed documentation prescribed by applicable Requirements of Law and such other documentation  reasonably requested by the Borrower or the Administrative Agent (i) as will permit such payments to be  made without, or at a reduced rate of, withholding or (ii) as will enable the Borrower or the Administrative  Agent to determine whether or not such Lender is subject to backup withholding or information reporting  requirements.  Notwithstanding anything to the contrary in the preceding sentence, the completion,  execution and submission of such documentation (other than such documentation set forth in  Section 2.17(e)(1), (2)(A)-(D), and (3) below) shall not be required if in the Lender’s reasonable judgment  such completion, execution or submission would subject such Lender to any material unreimbursed cost or  expense or would materially prejudice the legal or commercial position of such Lender.  Each Lender shall,  whenever a lapse in time or change in circumstances renders such documentation obsolete, expired or  inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated  or other appropriate documentation (including any new documentation reasonably requested by the  Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in  writing of its legal ineligibility to do so.  Each Lender hereby authorizes the Administrative Agent to deliver  to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender  to the Administrative Agent pursuant to this Section 2.17.  Without limiting the foregoing:  (1) Each Lender that is a “United States person” within the meaning of Section  7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or  before the date on which it becomes a party to this Agreement (and from time to time  thereafter upon the reasonable request of the Borrower or the Administrative Agent) two  executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal  backup withholding.  





 






117  (2) Each Lender that is not a “United States person” within the meaning of  Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative  Agent on or before the date on which it becomes a party to this Agreement (and from time  to time thereafter upon the reasonable request of the Borrower or the Administrative Agent)  whichever of the following is applicable:  (A) two executed copies of IRS Form W-8BEN or IRS Form W- 8BEN-E (or any successor forms), as applicable, claiming eligibility for the  benefits of an income tax treaty to which the United States is a party, establishing  an exemption from, or reduction of, U.S. federal withholding Tax (i) pursuant to  the “interest” article of such tax treaty with respect to payments of interest under  any Loan Document and (ii) pursuant to the “business profits” or “other income”  article of such tax treaty with respect to any other applicable payments under any  Loan Document,  (B) two executed copies of IRS Form W-8ECI (or any successor  forms),  (C) in the case of a Lender claiming the benefits of the exemption for  portfolio interest under Section 871(h) or Section 881(c) of the Code, (x) two  properly completed and duly signed certificates substantially in the form of  Exhibit I-1, I-2, I-3 and I-4, as applicable, (any such certificate, a “U.S. Tax  Compliance Certificate”) and (y) two executed copies of IRS Form W-8BEN or  IRS Form W-8BEN-E (or any successor forms), as applicable,  (D) to the extent a Lender is not the beneficial owner (for example,  where the Lender is a partnership or a participating Lender), two executed copies  of IRS Form W-8IMY (or any successor forms) of the Lender, accompanied by an  IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, U.S. Tax  Compliance Certificate, IRS Form W-9, or any other required information (or any  successor forms) from each beneficial owner that would be required under this  Section 2.17(e) if such beneficial owner were a Lender, as applicable (provided  that, if the Lender is a partnership for U.S. federal income tax purposes (and not a  participating Lender) and one or more direct or indirect partners are claiming the  portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided  by such Lender on behalf of such direct or indirect partner(s)), or  (E) two executed copies of any other form prescribed by applicable  U.S. federal income tax laws as a basis for claiming a complete exemption from,  or a reduction in, U.S. federal withholding tax on any payments to such Lender  under the Loan Documents, together with such supplementary documentation as  may be prescribed by applicable law to permit the Borrower or the Administrative  Agent to determine the withholding or deduction required to be made.  (3) If a payment made to a Lender under any Loan Document would be subject  to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply  with the applicable reporting requirements of FATCA (including those contained in  Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the  Borrower and the Administrative Agent at the time or times prescribed by law and at such  time or times reasonably requested by the Borrower or the Administrative Agent such  documentation prescribed by applicable law (including as prescribed by  





 






118  Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably  requested by the Borrower or the Administrative Agent as may be necessary for the  Borrower and the Administrative Agent to comply with their obligations under FATCA to  determine whether such Lender has or has not complied with such Lender’s obligations  under FATCA and to determine the amount, if any, to deduct and withhold from such  payment.  Solely for purposes of this clause (3), “FATCA” shall include any amendments  made to FATCA after the Effective Date.  (4) The Administrative Agent shall deliver to the Borrower, on or prior to the  Closing Date (or, in the case of a successor Administrative Agent, on or before the date on  which it becomes the Administrative Agent), a properly completed and executed Internal  Revenue Service Form W-8IMY (indicating “Qualified Intermediary” or U.S. branch  status) or Internal Revenue Service Form W-9, as applicable.  Notwithstanding any other provisions of this paragraph (e), a Lender shall not be required to deliver any  form or other documentation that such Lender is not legally eligible to deliver.  (f) If the Administrative Agent or a Lender determines in its sole discretion exercised in good  faith that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been  indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant  to this Section 2.17, it shall pay over such refund to the Borrower (but only to the extent of indemnity  payments made, or additional amounts paid, by the Borrower under this Section with respect to the  Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including  Taxes) of the Administrative Agent or such Lender and without interest (other than any interest paid by the  relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request  of the Administrative Agent or such Lender, agrees promptly to repay the amount paid over to the Borrower  pursuant to this Section 2.17(f) (plus any penalties, interest or other charges imposed by the relevant  Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent  or such Lender is required to repay such refund to such Governmental Authority.  The Administrative Agent  or such Lender, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of  any notice of assessment or other evidence of the requirement to repay such refund received from the  relevant taxing authority (provided that the Administrative Agent or such Lender may delete any  information therein that the Administrative Agent or such Lender deems confidential).  Notwithstanding  anything to the contrary, (i) in no event with the Administrative Agent or any Lender be required to pay  any amount pursuant to this paragraph (f) the payment of which would place the administrative Agent or  Lender, as applicable, in a less favorable net after-Tax position than the Administrative Agent or Lender  would have been in if the Tax subject to indemnification and giving rise to such refund had not been  deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with  respect to such Tax had never been paid and (ii) this Section 2.17(f) shall not be construed to require the  Administrative Agent or any Lender to make available its Tax returns (or any other information relating to  Taxes which it deems confidential to any Loan Party or any other Person).  (g) Each party’s obligations under this Section 2.17 shall survive the resignation or  replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender,  or the consummation of the transactions contemplated hereby, the repayment, satisfaction or discharge of  all obligations under any Loan Document, the expiration or termination of the Letters of Credit and the  Commitments or the termination of this Agreement or any provision hereof.  (h) For purposes of this Section 2.17 and the indemnity set forth in Article 8, the term “Lender”  shall include any Issuing Bank and the Swingline Lender and “applicable Requirements of Law” shall  include FATCA.  





 






119  SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.  (a) The Borrower shall make each payment required to be made by it under any Loan  Document (whether of principal, interest, fees, or reimbursement of LC Disbursement of amounts payable  under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or under such  other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New  York City time), on the date when due, in immediately available funds, without setoff or counterclaim.   Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be  deemed to have been received on the next succeeding Business Day for purposes of calculating interest  thereon.  All such payments shall be made to such account as may be specified by the Administrative Agent,  except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly  provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made  directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to  the Persons specified therein.  The Administrative Agent shall distribute any such payments received by it  for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any  payment (other than payments on the Eurocurrency Loans) under any Loan Document shall be due on a  day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day.   If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the  maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension  would be to extend such payment into another calendar month, in which event such payment shall be made  on the immediately preceding Business Day.  In the case of any payment of principal pursuant to the  preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such  extension.  All payments or prepayments of any Loan or LC Disbursement (or of interest thereon) and all  other payments under each Loan Document, in each case, shall be made in Dollars.  (b) If at any time insufficient funds are received by and available to the Administrative Agent  to pay fully all amounts of principal, unreimbursed LC Disbursements, interest, premiums and fees then  due hereunder, such funds shall be applied (i) first, towards payment of interest, premiums and fees then  due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest,  premiums and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed  LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the  amounts of principal and unreimbursed LC Disbursements then due to such parties.  (c) Except as otherwise set forth in this Agreement or any other Loan Document, if any Lender  shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any  principal of or interest on any of its Loans of a given Class or participations in LC Disbursements or  Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate  amount of its Loans or participations in LC Disbursements or Swingline Loans and accrued interest thereon  than the proportion received by any other Lender and such other Lender would have been entitled to be  treated on a pro rata basis with such receiving Lender, then the Lender receiving such greater proportion  shall purchase (for cash at face value) participations in the Loans or participations in LC Disbursements or  Swingline Loans of such other Lender at such time outstanding to the extent necessary so that the benefit  of all such payments shall be shared by the Lenders entitled to such payment ratably in accordance with the  aggregate amount of principal of and accrued interest on their respective Loans or participations in LC  Disbursements or Swingline Loans; provided that (i) if any such participations are purchased and all or any  portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the  purchase price restored to the extent of such recovery, without interest and (ii) the provisions of this  paragraph shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in  accordance with the express terms of this Agreement (including the application of funds arising from  existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for any permitted  assignment of or sale of a participation in any of its Loans, Commitments or participations in LC  





 






120  Disbursements or Swingline Loans to any assignee or participant, including any payment made or deemed  made in connection with an Incremental Refinancing Facility or Sections 2.22 or 9.02 or (C) any  disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the  maturity date or expiration date of some but not all Loans or Commitments of that Class or any increase in  the Applicable Rate in respect of Loans of Lenders that have consented to any such extension, including  under Section 2.24.  The Borrower consents to the foregoing and agrees, to the extent it may effectively do  so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the  foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect  to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such  participation.  (d) If any Lender shall fail to make any payment required to be made by it pursuant to Section  2.04(c), Section 2.05(e) or Section 2.05(f), Section 2.06(a) or Section 2.06(b), this Section 2.18 or  Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the  Administrative Agent (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter  received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations  under such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in  a segregated account as Cash Collateral for, and to be applied to, any future funding obligations of such  Lender under any such Section.  SECTION 2.19 Mitigation Obligations; Replacement of Lenders.  (a) If any Lender requests compensation under Section 2.15, or if any Loan Party is required  to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender  pursuant to Section 2.17 or any event that gives rise to the operation of Section 2.23, then such Lender shall  use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or  its participation in any Letter of Credit affected by such event, or to assign and delegate its rights and  obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such  Lender, such designation or assignment and delegation (i) would eliminate or reduce amounts payable  pursuant to Section 2.15 or Section 2.17 or mitigate the applicability of Section 2.23, as the case may be,  and (ii) would not subject such Lender to any unreimbursed cost or expense reasonably deemed by such  Lender to be material and would not be inconsistent with the internal policies of, or otherwise be  disadvantageous in any material economic, legal or regulatory respect to, such Lender.  (b) If (i) any Lender requests compensation under Section 2.15 or gives notice under  Section 2.23, (ii) the Borrower is required to pay any additional amount to any Lender or to any  Governmental Authority for the account of any Lender pursuant to Section 2.17 or (iii) any Lender becomes  a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and  the Administrative Agent, require such Lender to assign and delegate (and such Lender shall be obligated  to assign and delegate), without recourse (in accordance with and subject to the restrictions contained in  Section 9.04), all its interests, rights and obligations under this Agreement and the other Loan Documents  (other than its existing rights to payments pursuant to Section 2.15 or Section 2.17) to an Eligible Assignee  that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such  assignment and delegation); provided that (A) the Borrower shall have received the prior written consent  of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an  assignment of Loans or Commitments, as applicable (and if a Revolving Commitment is being assigned  and delegated, each Issuing Bank and the Swingline Lender), which consents, in each case, shall not  unreasonably be withheld or delayed, (B) such Lender shall have received payment of an amount equal to  the outstanding principal of its Loans and unreimbursed participations in LC Disbursements and Swingline  Loans, accrued but unpaid interest thereon, accrued but unpaid fees, if any, and all other amounts, if any,  payable to it hereunder from the assignee or the Borrower, (C) the Borrower or such assignee shall have  





 






121  paid (unless waived) to the Administrative Agent the processing and recordation fee specified in  Section 9.04(b)(ii) and (D) in the case of any such assignment resulting from a claim for compensation  under Section 2.15, payments required to be made pursuant to Section 2.17 or a notice given under  Section 2.23, such assignment will result in a reduction in such compensation or payments.  A Lender shall  not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such  Lender or otherwise (including as a result of any action taken by such Lender under paragraph (a) above),  the circumstances entitling the Borrower to require such assignment and delegation cease to apply.  Each  party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an  Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that  the Lender required to make such assignment need not be a party thereto.  SECTION 2.20 Incremental Loans and Commitments.  (a) The Borrower may at any time or from time to time (on one or more occasions) after the  Amendment No. 1 Effective Date, with notice to the Administrative Agent, pursuant to an Incremental  Facility Amendment (i) add one or more additional Classes of term loans or additional term loans of the  same Class of any existing Class of term loans or increases of any existing Class of term loans (the  “Incremental Term Loans”), (ii) increase the amount of the Revolving Commitments of any Class (each  such increase, an “Incremental Revolving Commitment Increase”) or (iii) only as described in clause (ii)  of the proviso to the succeeding sentence and constituting an Incremental Refinancing Facility, add one or  more additional Classes of revolving credit commitments (the “Replacement Revolving Commitments”  and, together with any Incremental Term Loans and Incremental Revolving Commitment Increases, the  “Incremental Facilities” and the commitments in respect thereof, the “Incremental Commitments”);  provided that, subject to Section 1.08, at the time of the incurrence of any such Incremental Facility, (1) no  Event of Default shall have occurred and be continuing or would result therefrom and (2) (x) the  representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct  in all material respects; provided that, to the extent that such representations and warranties specifically  refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided  further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect”  or similar language shall be true and correct in all respects or (y) in the case of any Permitted Acquisition  or similar Investment, the Specified Representations shall be true and correct in all material respects (unless  such representations relate to an earlier date, in which case, such representations shall have been true and  correct in all materials respect as of such earlier date); provided that, if any Specified Representation is  qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or  qualification shall be true and correct in all respects.  Notwithstanding anything to contrary herein, the  aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed  the Incremental Cap at such time; provided that (i) Incremental Term Loans may be incurred without regard  to the Incremental Cap, without regard to whether an Event of Default has occurred and is continuing and,  without regard to the minimums set forth in the immediately succeeding sentence, to the extent that the Net  Proceeds from such Incremental Term Loans on the date of incurrence of such Incremental Term Loans (or  substantially concurrently therewith) are used to either (x) prepay Term Loans and related amounts in  accordance with the procedures set forth in Section 2.11(e) or Section 2.11(f) as applicable, or (y)  permanently reduce the Revolving Commitments, Other Revolving Commitments or Replacement  Revolving Commitments and (ii) Replacement Revolving Commitments may be provided without regard  to the Incremental Limit, without regard to whether a Default or an Event of Default has occurred and is  continuing and without regard to the minimums set forth in the immediately succeeding sentence, to the  extent that the existing Revolving Commitments, Other Revolving Commitments or other Replacement  Revolving Commitments shall be permanently reduced by an amount equal to the aggregate amount of  Replacement Revolving Commitments so provided (and any such Replacement Revolving Commitments  shall be deemed to have been incurred pursuant to this proviso) (any Incremental Facility incurred for the  purposes set forth in this proviso, an “Incremental Refinancing Facility”; the term loans under such  





 






122  Incremental Refinancing Facility, “Incremental Refinancing Term Loans”). Each Incremental Facility  (other than as set forth in the preceding proviso) shall be in a minimum principal amount of $10,000,000  and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent  otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all  the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.  (b) (i) Any Incremental Facility shall rank equal in right of payment and security with the  Initial Term Loans, the 2020 Incremental Term Loans, the 2021 Incremental Term Loans, the 2021-2  Incremental Term Loans or Revolving Loans, as applicable, shall be secured only by all or a portion of the  Collateral securing the Secured Obligations and shall not be incurred or guaranteed by any other Person  which is not a Loan Party, (ii) except with respect to any Incremental Facility constituting a customary  bridge facility, so long as the Indebtedness into which any such customary bridge facility is to be converted  or exchanged satisfies the requirements of this clause (ii) and such conversion or exchange is subject only  to conditions customary for similar conversions or exchanges and Incremental Facilities subject to  Customary Escrow Provisions, the Incremental Term Loans shall not mature earlier than the applicable  Latest Maturity Date, (iii) except with respect to any Incremental Facility constituting a customary bridge  facility, so long as the Indebtedness into which any such customary bridge facility is to be converted or  exchanged satisfies the requirements of this clause (iii) and such conversion or exchange is subject only to  conditions customary for similar conversions or exchanges and Incremental Facilities subject to Customary  Escrow Provisions, the Incremental Term Loans shall not have a shorter Weighted Average Life to Maturity  than the Initial Term Loans, the 2020 Incremental Term Loans, the 2021 Incremental Term Loans or the  2021-2 Incremental Term Loans, as applicable, (iv) the Incremental Facilities shall have a maturity date  (subject to clause (ii)), an amortization schedule (subject to clause (iii)), interest rates (including through  fixed interest rates), interest margins, rate floors, upfront fees, AHYDO Catch-Up Payments, funding  discounts, original issue discounts, currency types and denominations and prepayment terms and premiums  as determined by the Borrower and the lenders of such applicable Incremental Facilities; provided that, in  the case of any Incremental Term Loans that are not Incremental Refinancing Term Loans incurred after  the Amendment No. 1 Effective Date, in the event that the Effective Yield for such Incremental Term Loans  is greater than the Effective Yield for the Initial Term Loans, 2020 Incremental Term Loans, 2021  Incremental Term Loans and/or 2021-2 Incremental Term Loans, as applicable, by more than 0.50% per  annum, then the Applicable Rate for such Initial Term Loans, 2020 Incremental Term Loans, 2021  Incremental Term Loans and/or 2021-2 Incremental Term Loans, as applicable, shall be increased to the  extent necessary so that the Effective Yield for such Initial Term Loans, 2020 Incremental Term Loans,  2021 Incremental Term Loans and/or 2021-2 Incremental Term Loans, as applicable, shall be equal to the  Effective Yield with respect to such Incremental Term Loans minus 0.50% per annum (this proviso, the  “MFN Adjustment”); (v) any mandatory prepayment (other than any scheduled amortization payment) of  Incremental Term Loans shall be offered to be made on a pro rata basis with the Initial Term Loans, 2020  Incremental Term Loans, 2021 Incremental Term Loans and/or 2021-2 Incremental Term Loans, as  applicable, except that the Borrower and the lenders providing the relevant Incremental Term Loans shall  be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a  less than pro rata basis (but not on a greater than pro rata basis) and (vi) the Incremental Term Loans may  otherwise have terms and conditions different from those of the Initial Term Loans, 2020 Incremental Term  Loans, 2021 Incremental Term Loans and/or 2021-2 Incremental Term Loans, as applicable (including  currency denomination; provided such currency is reasonably acceptable to the Administrative Agent);  provided further that if such terms and conditions are not substantially consistent with the terms of the then- existing Initial Term Loans, 2020 Incremental Term Loans, 2021 Incremental Term Loans and/or 2021-2  Incremental Term Loans, as applicable, except with respect to matters contemplated by clauses (i) – (v)  above, such terms shall be (A) not materially more restrictive on Holdings, the Borrower and its Restricted  Subsidiaries than those applicable to such then-existing Term Loans when taken as a whole (it being  understood that, to the extent that any covenant or other provision is added for the benefit of any such  Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such  





 






123  covenant or other provision is either (i) also added for the benefit of all Credit Facilities hereunder not  constituting Incremental Term Loans or (ii) only applicable to periods after the Latest Maturity Date at the  time of such incurrence) or (B) reasonably satisfactory to the Administrative Agent.  (c) Any Incremental Revolving Commitment Increase shall be treated the same as the Class  of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be  considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if  required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins,  rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be  increased for all applicable existing Revolving Lenders and additional upfront or similar fees may be  payable to the lenders providing the Incremental Revolving Commitment Increase (without any  requirement to pay such fees to any existing Revolving Lenders)).  (d) The Replacement Revolving Commitments may only be incurred as an Incremental  Refinancing Facility and (i) shall not mature earlier than the then-existing Latest Maturity Date and shall  require no amortization or mandatory commitment reduction prior to the then-existing Latest Maturity Date,  (ii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront  fees, undrawn commitment fees, funding discounts, original issue discounts, currency types and  denominations, prepayment terms and premiums and commitment reduction and termination terms as  determined by the Borrower and the lenders of such commitments, (iii) shall contain borrowing, repayment  and termination of Commitment procedures as determined by the Borrower and the lenders of such  commitments, (iv) may include provisions relating to letters of credit, as applicable, issued thereunder,  which issuances shall be on terms substantially similar (except for the overall size of such sub-facilities,  the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which  shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit  issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each  case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to  the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise  reasonably acceptable to the Administrative Agent and (v) may otherwise have terms and conditions  different from those of the Revolving Credit Facility (including currency denomination); provided that  except with respect to matters contemplated by clause (c) above and clauses (i)-(iv) of this clause (d), if any  differences are not substantially consistent with the terms of the Revolving Credit Facility, such terms shall  be not materially more restrictive on Holdings, the Borrower and its Restricted Subsidiaries than those  applicable to the then-existing Revolving Credit Facility, as applicable, when taken as a whole (it being  understood that, to the extent that any covenant or other provision is added for the benefit of any such  Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such  covenant or other provision is either (i) also added for the benefit of all Credit Facilities hereunder not  constituting Replacement Revolving Commitments, or (ii) only applicable to periods after the Latest  Maturity Date at the time of such incurrence) or reasonably satisfactory to the Administrative Agent.   (e) [Reserved].   (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment  Increases and Replacement Revolving Commitments shall become Commitments (or in the case of an  Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving  Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement  pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate,  the other Loan Documents, executed by the Borrower, each Lender or Additional Lender, if any, agreeing  to provide such Commitment (it being agreed that any Person other than a Lender agreeing to provide such  Commitment shall meet the requirements set forth in the definition of “Additional Lender”), and the  Administrative Agent.  Incremental Term Loans and loans under Incremental Revolving Commitment  





 






124  Increases and Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement  and the other Loan Documents.  The Incremental Facility Amendment may, without the consent of any  other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be  necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions  of this Section 2.20 (including, without limitation, to (i) in connection with an Incremental Revolving Credit  Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving  Credit Lenders, (ii) in connection with Classes of Incremental Term Loans, to extend the “prepayment  premium” period for the benefit of any existing Class of Term Loans to the extent that such Class of  Incremental Term Loans shall have the benefit of such longer or higher “prepayment premium” period,  (iii) increase the Effective Yield of the applicable Class of Term Loans or amend the amortization  applicable thereto or otherwise make changes to the extent necessary in order to ensure that any applicable  Class of Incremental Term Loans are “fungible” with such existing Class of Term Loans; provided that any  such amendment to the amortization applicable to any existing Class of Term Loans shall not result in the  decrease of any amortization payment any Lender of such Class of Term Loans would have received prior  to giving effect to such amendment, (iv) add or extend “soft call” or add or extend any other “call  protection”, in either case, for the benefit of any existing Class of Term Loans) and (v) in connection with  any incurrence of any Incremental Facility denominated in a currency other than Dollars, to add interest  rate definitions and other currency provisions that are customarily included in agreements contemplating  Borrowings or the execution of credit documents in any such currency.  The effectiveness of any  Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the  conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of  Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of  such conditions as the parties thereto shall agree (subject to the foregoing provisions of this Section 2.20).   The Loan Parties will use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment  Increases and Replacement Revolving Commitments for working capital and other general corporate  purposes, including the financing of acquisitions permitted hereunder and other Investments, permitted  Restricted Payments and any other purpose not prohibited by this Agreement.  (g) The opportunity to commit to provide all or a portion of an Incremental Facility shall be  offered by the Borrower first to the existing Lenders on a pro rata basis and, to the extent that such existing  Lenders have not agreed to provide such Incremental Facilities within five Business Days after receiving  such offer from the Borrower (or the Administrative Agent or any arranger of such Incremental Facilities  on behalf of the Borrower), on the terms specified by the Borrower, the Borrower may then offer such  opportunity to other Persons (which may include existing Lenders). Subject to the immediately preceding  sentence, Incremental Facilities may be provided by (x) any existing Lender (in its sole discretion), or (y)  any Additional Lender, subject to the consent of (i) the Administrative Agent (not to be unreasonably  withheld or delayed) if such consent would be required under Section 9.04 for assignments or participations  of Term Loans, Revolving Loans or Commitments, as applicable, to the relevant Person and (ii) in the case  of any Replacement Revolving Commitments or Incremental Revolving Commitment Increases, each  Issuing Bank and the Swingline Lender.  (h) Each Lender or Additional Lender providing a portion of any Incremental Facility shall  execute and deliver to the Administrative Agent and the Borrower all such documentation (including the  relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to  evidence and effectuate such Incremental Facility.  On the effective date of such Incremental Facility, each  Additional Lender shall become a Lender for all purposes in connection with this Agreement.  (i) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any  Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary  in order to establish new Classes or sub-Classes in respect of Loans or Commitments pursuant to this  Section 2.20 and such technical amendments (including, without limitation, as set forth in clause (f) above)  





 






125  as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower  in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent  with this Section 2.20.  (j) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions  in Section 2.18 or Section 9.02 to the contrary.  SECTION 2.21 [Reserved].   SECTION 2.22 Defaulting Lenders.  (a) General.  Notwithstanding anything to the contrary contained in this Agreement, if any  Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender,  to the extent permitted by applicable law:  (i) Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as  set forth in Section 9.02.  (ii) Reallocation of Payments.  Subject to the last sentence of Section 2.11(f)(i), the  last sentence of Section 2.11(f)(ii) and the last sentence of Section 2.11(g), any payment of  principal, interest, fees or other amounts received by the Administrative Agent for the account of  that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or  otherwise, and including any amounts made available to the Administrative Agent by that  Defaulting Lender pursuant to Section 9.08), shall be applied at such time or times as may be  determined by the Administrative Agent as follows: first, to the payment of any amounts owing by  that Defaulting Lender to the Administrative Agent hereunder; second, in the case of a Revolving  Lender, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to each  Issuing Bank and the Swingline Lender hereunder; third, as the Borrower may request (so long as  no Default or Event of Default exists), to the funding of any Loan in respect of which that  Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as  determined by the Administrative Agent; fourth, in the case of a Revolving Lender, if so determined  by the Administrative Agent, Holdings and the Borrower, to be held in a non-interest bearing  deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans  under this Agreement; fifth, to the payment of any amounts owing to the Lenders, the Issuing Banks  or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained  by any Lender, such Issuing Bank or the Swingline Lender against that Defaulting Lender as a  result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as  no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a  result of any judgment of a court of competent jurisdiction obtained by the Borrower against that  Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this  Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent  jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or  LC Disbursements and such Lender is a Defaulting Lender under clause (a) of the definition  thereof, such payment shall be applied solely to pay the relevant Loans of, or LC Disbursements  owed to, as applicable, the relevant non-Defaulting Lenders on a pro rata basis prior to being  applied pursuant to the other provisions of this Section 2.22(a)(ii).  Any payments, prepayments or  other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts  owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 2.05(j) shall be deemed  paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.  





 






126  (iii) Certain Fees.  That Defaulting Lender (x) shall not be entitled to receive or accrue  any commitment fee pursuant to Section 2.12(a) for any period during which that Lender is a  Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would  have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right  to receive Letter of Credit fees as provided in Section 2.12(f).  (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.  During any  period in which there is a Defaulting Lender, for purposes of computing the amount of the  obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swingline  Loans and Letters of Credit pursuant to Section 2.04 and Section 2.05, the “Applicable Percentage”  of each non-Defaulting Lender shall be computed without giving effect to the Revolving  Commitment of that Defaulting Lender; provided that the aggregate obligation of each non- Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swingline  Loans shall not at any time exceed the positive difference, if any, of (1) the Revolving Commitment  of that non-Defaulting Lender minus (2) the aggregate Revolving Exposure of that Lender.  If the  reallocation provided for in the preceding sentence cannot, or can only partially, be effected, the  Borrower shall (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that  has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the  portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with  the procedures set forth in Section 2.05(j) for so long as such unreallocated LC Exposure is  outstanding.  (b) Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the Swingline Lender  and each Issuing Bank agree in writing in their sole discretion that a Defaulting Lender should no longer  be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon  as of the effective date specified in such notice and subject to any conditions set forth therein (which may  include arrangements with respect to any Cash Collateral), such Lender will, to the extent applicable,  purchase that portion of outstanding Loans of the other Lenders or take such other actions as the  Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded  participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in  accordance with their Applicable Percentages (without giving effect to Section 2.22(a)(iv)), whereupon that  Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with  respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a  Defaulting Lender; and provided further that except to the extent otherwise expressly agreed by the affected  parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any  claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  SECTION 2.23 Illegality.  If any Lender determines that any law has made it unlawful, or that  any Governmental Authority has asserted that it is unlawful, for any Lender to make, maintain or fund  Loans whose interest is determined by reference to the Adjusted LIBO Rate, or to determine or charge  interest rates based upon the Adjusted LIBO Rate, then, on notice thereof by such Lender to the Borrower  through the Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Loans  or to convert ABR Loans to Eurocurrency Loans shall be suspended until such Lender notifies the  Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer  exist.  Upon receipt of such notice, (x) the Borrower shall, upon three Business Days’ notice from such  Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurocurrency Loans  of such Lender to ABR Loans, either on the last day of the Interest Period therefor, if such Lender may  lawfully continue to maintain such Eurocurrency Loans to such day, or immediately, if such Lender may  not lawfully continue to maintain such Eurocurrency Loans, and (y) if such notice asserts the illegality of  such Lender determining or charging interest rates based upon the Adjusted LIBO Rate, the Administrative  Agent shall, during the period of such suspension, compute the Alternate Base Rate applicable to such  





 






127  Lender without reference to the Adjusted LIBO Rate component thereof until the Administrative Agent is  advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest  rates based upon the Adjusted LIBO Rate.  Each Lender agrees to notify the Administrative Agent and the  Borrower in writing promptly upon becoming aware that it is no longer illegal for such Lender to determine  or charge interest rates based upon the Adjusted LIBO Rate.  Upon any such prepayment or conversion, the  Borrower shall also pay accrued interest on the amount so prepaid or converted.  SECTION 2.24 Loan Modification Offers.  (a) The Borrower may at any time and from time to time request that all or a portion of each  Term Loan of any Class (an “Existing Term Loan Class”) be converted or exchanged to extend the  scheduled final maturity date(s) of any payment of principal with respect to all or a portion of any principal  amount of such Term Loans (any such Term Loans which have been so extended, “Extended Term Loans”)  and to provide for other terms consistent with this Section 2.24.  Prior to entering into any Loan  Modification Agreement with respect to any Extended Term Loans, the Borrower shall provide written  notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the  applicable Existing Term Loan Class, with such request offered equally to all such Lenders of such Existing  Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended  Term Loans to be established, which terms shall be similar to the Term Loans of the Existing Term Loan  Class from which they are to be extended except that (w) the scheduled final maturity date shall be extended  and all or any of the scheduled amortization payments of all or a portion of any principal amount of such  Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the  Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment  to the scheduled amortization payments reflected in Section 2.10 or in the Loan Modification Agreement  or the Incremental Facility Amendment, as the case may be, with respect to the Existing Term Loan Class  of Term Loans from which such Extended Term Loans were extended, in each case as more particularly  set forth in Section 2.24(c) below), (x)(A) the interest rates (including through fixed interest rates), interest  margins, rate floors, upfront fees, funding discounts, AHYDO Catch-Up Payments, original issue discounts,  currency types and denominations and prepayment terms and premiums with respect to the Extended Term  Loans may be different than those for the Term Loans of such Existing Term Loan Class and/or (B)  additional fees and/or premiums may be payable to the Lenders providing such Extended Term Loans in  addition to any of the items contemplated by the preceding clause (A), in each case, to the extent provided  in the applicable Loan Modification Agreement, (y) subject to the provisions set forth in Section 2.11, the  Extended Term Loans may have optional prepayment terms (including call protection and prepayment  terms and premiums) and mandatory prepayment terms as may be agreed between Holdings, the Borrower  and the Lenders thereof and (z) the Loan Modification Agreement may provide for other covenants and  terms that apply to any period after the Latest Maturity Date.  No Lender shall have any obligation to agree  to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans  pursuant to any Term Loan Extension Request.  Any Extended Term Loans of any Extension Series shall  constitute a separate Class of Term Loans from the Existing Term Loan Class of Term Loans from which  they were extended.  (b) The Borrower may at any time and from time to time request that all or a portion of the  Revolving Commitments of any Class, the Extended Revolving Commitments of any Class and/or any  Replacement Revolving Commitments (and, in each case, including any previously extended Revolving  Credit Commitments and/or Replacement Revolving Commitments), existing at the time of such request  (each, an “Existing Revolving Commitment” and any related revolving credit loans under any such facility,  “Existing Revolving Loans”; each Existing Revolving Commitment and related Existing Revolving Loans  together being referred to as an “Existing Revolving Class”) be converted or exchanged to extend the  termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all  or a portion of any principal amount of Existing Revolving Loans related to such Existing Revolving  





 






128  Commitments (any such Existing Revolving Commitments which have been so extended, “Extended  Revolving Commitments” and any related revolving credit loans, “Extended Revolving Loans”) and to  provide for other terms consistent with this Section 2.24.  Prior to entering into any Loan Modification  Agreement with respect to any Extended Revolving Commitments, the Borrower shall provide a notice to  the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable  Class of Existing Revolving Commitments, with such request offered equally to all Lenders of such Class)  (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving  Commitments to be established thereunder, which terms shall be similar to those applicable to the Existing  Revolving Commitments from which they are to be extended (the “Specified Existing Revolving  Commitment Class”) except that (w) all or any of the final maturity dates of such Extended Revolving  Commitments may be delayed to later dates than the final maturity dates of the Existing Revolving  Commitments of the Specified Existing Revolving Credit Commitment Class, (x)(A) the interest rates,  interest margins, rate floors, upfront fees, funding discounts, AHYDO Catch-Up Payments, original issue  discounts, currency types and denominations and prepayment terms and premiums with respect to the  Extended Revolving Commitments may be different than those for the Existing Revolving Commitments  of the Specified Existing Revolving Commitment Class and/or (B) additional fees and/or premiums may  be payable to the Lenders providing such Extended Revolving Commitments in addition to or in lieu of any  of the items contemplated by the preceding clause (A) and (y)(1) the undrawn revolving credit commitment  fee rate with respect to the Extended Revolving Commitments may be different than those for the Specified  Existing Revolving Commitment Class and (2) the Loan Modification Agreement may provide for other  covenants and terms that apply to any period after the Latest Maturity Date; provided that, notwithstanding  anything to the contrary in this Section 2.24 or otherwise, (I) the borrowing and repayment (other than in  connection with a permanent repayment and termination of commitments) of the Extended Revolving  Loans under any Extended Revolving Commitments shall be made on a pro rata basis with any borrowings  and repayments of the Existing Revolving Loans of the Specified Existing Revolving Commitment Class  (the mechanics for which may be implemented through the applicable Loan Modification Agreement and  may include technical changes related to the borrowing and repayment procedures of the Specified Existing  Revolving Commitment Class), (II) assignments and participations of Extended Revolving Commitments  and Extended Revolving Loans shall be governed by the assignment and participation provisions set forth  in Section 9.04 and (III) subject to the applicable limitations set forth in Section 2.08, permanent repayments  of Extended Revolving Loans (and corresponding permanent reduction in the related Extended Revolving  Commitments) shall be permitted as may be agreed between Holdings and the Borrower and the Lenders  thereof.  No Lender shall have any obligation to agree to have any of its Revolving Loans or Revolving  Commitments of any Existing Revolving Class converted or exchanged into Extended Revolving Loans or  Extended Revolving Commitments pursuant to any Loan Modification Offer.  Any Extended Revolving  Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit  commitments from Existing Revolving Commitments of the Specified Existing Revolving Credit Class and  from any other Existing Revolving Commitments (together with any other Extended Revolving  Commitments so established on such date).  (c) The Borrower shall provide the applicable Loan Modification Offer to the Administrative  Agent at least five Business Days (or such shorter period as the Administrative Agent may determine in its  reasonable discretion) prior to the date on which Lenders under the Existing Class are requested to respond,  and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative  Agent, in each case acting reasonably, to accomplish the purpose of this Section 2.24.  Holdings and the  Borrower may, at its election, specify as a condition to consummating any Loan Modification Agreement  that a minimum amount (to be determined and specified in the relevant Loan Modification Offer in  Holdings’ and the Borrower’s sole discretion and as may be waived by the Borrower) of Term Loans and/or  Revolving Commitments (as applicable) of any or all applicable Classes be tendered.  Any Lender (an  “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Commitments or  Replacement Revolving Credit Commitments (or any earlier Extended Revolving Commitments) of an  





 






129  Existing Class subject to such Loan Modification Offer converted or exchanged into Extended  Loans/Commitments shall notify the Administrative Agent (an “Extension Election”) on or prior to the date  specified in such Loan Modification Offer of the amount of its Term Loans, Revolving Commitments  and/or Replacement Revolving Commitments (and/or any earlier Extended Revolving Commitments)  which it has elected to convert or exchange into Extended Loans/Commitments (subject to any minimum  denomination requirements imposed by the Administrative Agent).  In the event that the aggregate amount  of Term Loans, Revolving Commitments and Replacement Revolving Commitments (and any earlier- extended Extended Revolving Commitments) subject to Extension Elections exceeds the amount of  Extended Loans/Commitments requested pursuant to the Extension Request, Term Loans, Revolving  Commitments, Replacement Revolving Commitments or earlier-extended Extended Revolving  Commitments, as applicable, subject to Extension Elections shall be converted to or exchanged to Extended  Loans/Commitments on a pro rata basis (subject to such rounding requirements as may be established by  the Administrative Agent) based on the amount of Term Loans, Revolving Commitments, Replacement  Revolving Commitments and earlier-extended Extended Revolving Commitments included in each such  Extension Election or as may be otherwise agreed to in the applicable Loan Modification Agreement.   Notwithstanding the conversion of any Existing Revolving Credit Commitment into an Extended Revolving  Credit Commitment, unless expressly agreed by the holders of each affected Existing Revolving Credit  Commitment of the Specified Existing Revolving Credit Commitment Class, such Extended Revolving  Credit Commitment shall not be treated more favorably than all Existing Revolving Commitments of the  Specified Existing Revolving Credit Commitment Class for purposes of the obligations of a Revolving  Lender in respect of Swingline Loans under Section 2.04 and Letters of Credit under Section 2.05, except  that the applicable Loan Modification Agreement may provide that the last day for issuing Letters of Credit  may be extended and the related obligations to issue Letters of Credit may be continued (pursuant to  mechanics to be specified in the applicable Loan Modification Agreement) so long as the applicable Issuing  Bank has consented to such extensions (it being understood that no consent of any other Lender shall be  required in connection with any such extension).  (d) Extended Loans/Commitments shall be established pursuant to an amendment (a “Loan  Modification Agreement”) to this Agreement (which, except to the extent expressly contemplated by the  penultimate sentence of this Section 2.24(d) and notwithstanding anything to the contrary set forth in  Section 9.02, shall not require the consent of any Lender other than the Extending Lenders with respect to  the Extended Loans/Commitments established thereby) executed by the Loan Parties, the Administrative  Agent and the Extending Lenders.  In addition to any terms and changes required or permitted by  Section 2.24(a), each Loan Modification Agreement in respect of Extended Term Loans shall amend the  scheduled amortization payments pursuant to Section 2.10 or the applicable Incremental Facility  Amendment or Loan Modification Agreement with respect to the Existing Class of Term Loans from which  the Extended Term Loans were exchanged to reduce each scheduled installment scheduled to be repaid on  any date for the Existing Class in the same proportion as the amount of Term Loans of the Existing Class  is to be reduced pursuant to such Loan Modification Agreement (it being understood that the amount of any  installment payable with respect to any individual Term Loan of such Existing Class that is not an Extended  Term Loan shall not be reduced as a result thereof).  In connection with any Loan Modification Agreement,  the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent and  addressed to the Administrative Agent and the applicable Extending Lenders (i) as to the enforceability of  such Loan Modification Agreement, this Agreement as amended thereby, and such of the other Loan  Documents (if any) as may be amended thereby (in the case of such other Loan Documents as contemplated  by the immediately preceding sentence) and covering customary matters and (ii) to the effect that such Loan  Modification Agreement, including the Extended Loans/Commitments provided for therein, does not  breach or result in a default under the provisions of Section 9.02 of this Agreement.  (e) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on  which any Existing Term Loan Class or Class of Existing Revolving Commitments is converted or  





 






130  exchanged to extend the related scheduled maturity date(s) in accordance with paragraph (a) above (an  “Extension Date”), (I) in the case of the existing Term Loans of each Extending Lender, the aggregate  principal amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate  principal amount of Extended Term Loans so converted or exchanged by such Lender on such date, and the  Extended Term Loans shall be established as a separate Class of Term Loans (together with any other  Extended Term Loans so established on such date) and (II) in the case of the Existing Revolving Credit  Commitments of each Extending Lender under any Specified Existing Revolving Credit Commitment  Class, the aggregate principal amount of such Existing Revolving Commitments shall be deemed reduced  by an amount equal to the aggregate principal amount of Extended Revolving Commitments so converted  or exchanged by such Lender on such date (or by any greater amount as may be agreed by the Borrower  and such Lender), and such Extended Revolving Commitments shall be established as a separate Class of  revolving credit commitments from the Specified Existing Revolving Credit Class and from any other  Existing Revolving Commitments (together with any other Extended Revolving Commitments so  established on such date) and (B) if, on any Extension Date, any Existing Revolving Loans of any Extending  Lender are outstanding under the Specified Existing Revolving Credit Class, such Existing Revolving  Loans (and any related participations) shall be deemed to be converted or exchanged to Extended Revolving  Loans (and related participations) of the applicable Class in the same proportion as such Extending Lender’s  Specified Existing Revolving Commitments to Extended Revolving Commitments of such Class.  (f) In the event that the Administrative Agent determines in its sole discretion that the  allocation of Extended Term Loans of a given Extension Series or the Extended Revolving Commitments  of a given Extension Series, in each case to a given Lender was incorrectly determined as a result of manifest  administrative error in the receipt and processing of an Extension Election timely submitted by such Lender  in accordance with the procedures set forth in the applicable Loan Modification Agreement, then the  Administrative Agent, Holdings, the Borrower and such affected Lender may (and hereby are authorized  to), in their sole discretion and without the consent of any other Lender, enter into an amendment to this  Agreement and the other Loan Documents (each, a “Corrective Loan Modification Agreement”) within 15  days following the effective date of such Loan Modification Agreement, as the case may be, which  Corrective Loan Modification Agreement shall (i) provide for the conversion or exchange and extension of  Term Loans under the Existing Term Loan Class or Existing Revolving Commitments (and related  Revolving Exposure), as the case may be, in such amount as is required to cause such Lender to hold  Extended Term Loans or Extended Revolving Commitments (and related revolving credit exposure) of the  applicable Extension Series into which such other Term Loans or Commitments were initially converted or  exchanged, as the case may be, in the amount such Lender would have held had such administrative error  not occurred and had such Lender received the minimum allocation of the applicable Loans or  Commitments to which it was entitled under the terms of such Loan Modification Agreement, in the absence  of such error, (ii) be subject to the satisfaction of such conditions as the Administrative Agent, Holdings,  the Borrower and such Lender may agree (including conditions of the type required to be satisfied for the  effectiveness of a Loan Modification Agreement described in Section 2.24(d)), and (iii) effect such other  amendments of the type (with appropriate reference and nomenclature changes) described in the  penultimate sentence of Section 2.24(c).  (g) No conversion or exchange of Loans or Commitments pursuant to any Loan Modification  Agreement in accordance with this Section 2.24 shall constitute a voluntary or mandatory payment or  prepayment for purposes of this Agreement.  (h) If, in connection with any proposed Loan Modification Offer, any Lender declines to  consent to such Loan Modification Offer on the terms and by the deadline set forth in such Loan  Modification Offer (each such Lender, a “Non-Accepting Lender”) then the Borrower may, on notice to  the Administrative Agent and the Non-Accepting Lender, replace such Non-Accepting Lender by causing  such Lender to (and such Lender shall be obligated to) assign and delegate, without recourse (in accordance  





 






131  with and subject to the restrictions contained in Section 9.04) all of its interests, rights and obligations under  this Agreement in respect of the Loans and Commitments of the applicable Class to one or more Eligible  Assignees (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided  that (A) any assignment pursuant to the terms of this Section 2.24(h) may be effected pursuant to an  Assignment and Assumption executed by Holdings, the Borrower, the Administrative and the assignee, and  the Non-Accepting Lender need not be party thereto, and (B) neither the Administrative Agent nor any  Lender shall have any obligation to the Borrower to find a replacement Lender; provided further that (a) the  applicable assignee shall have agreed to provide Loans and/or Commitments on the terms set forth in the  applicable Loan Modification Agreement, (b) such Non-Accepting Lender shall have received payment of  an amount equal to the outstanding principal of the Loans of the applicable Existing Class assigned by it  pursuant to this Section 2.24(h), accrued interest thereon, accrued fees and all other amounts payable to it  hereunder from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and  fees), (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent  the processing and recordation fee specified in Section 9.04(b) and (d) such Non-Accepting Lender shall  be entitled to any prepayment premiums or penalties from the Borrower to the extent a premium or penalty  would be due in respect of a prepayment of Term Loans pursuant to Section 2.11.  (i) Notwithstanding anything to the contrary, this Section 2.24 shall supersede any provisions  in Section 2.18 or Section 9.02 to the contrary.  ARTICLE III    REPRESENTATIONS AND WARRANTIES  Each of Holdings (solely with respect to Sections 3.01, 3.02, 3.03, 3.07, 3.08, 3.09, 3.12, 3.15 and  3.17) and the Borrower (solely as to itself and its respective Restricted Subsidiaries) represents and warrants  to the Lenders that:  SECTION 3.01 Organization; Powers.  Each of Holdings, the Borrower and each Restricted  Subsidiary is (a) duly organized, validly existing and (to the extent such concept exists in the relevant  jurisdictions) in good standing under the laws of the jurisdiction of its organization, (b) has the corporate  or other organizational power and authority to (i) carry on its business as now conducted and (ii) execute,  deliver and perform its obligations under each Loan Document to which it is a party and (c) is qualified to  do business in, and is in good standing in, every jurisdiction where such qualification is required, except in  the case of clause (a) (other than with respect to the Borrower or any Loan Party that is a Significant  Subsidiary), clause (b)(i) and clause (c), where the failure to do so, individually or in the aggregate, could  not reasonably be expected to result in a Material Adverse Effect.  SECTION 3.02 Authorization; Enforceability.  This Agreement has been duly authorized,  executed and delivered by each of Holdings and the Borrower and constitutes, and each other Loan  Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will  constitute, a legal, valid and binding obligation of Holdings, the Borrower or such Loan Party, as the case  may be, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency,  reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general  principles of equity, regardless of whether considered in a proceeding in equity or at law.  SECTION 3.03 Governmental Approvals; No Conflicts.  The execution, delivery and  performance of the obligations under the Loan Documents (a) do not require any consent or approval of,  registration or filing with, or any other action by, any Governmental Authority, except such as have been  obtained or made and are in full force and effect and except filings necessary to perfect Liens created under  the Loan Documents, (b) will not violate (i) the Organizational Documents of Holdings, the Borrower or  





 






132  any other Loan Party, or (ii) any Requirements of Law applicable to Holdings, the Borrower or any  Restricted Subsidiary, (c) will not violate or result in a default under any indenture or other agreement or  instrument that constitutes Material Indebtedness binding upon Holdings, the Borrower or any Restricted  Subsidiary or their respective assets, or give rise to a right thereunder to require any payment, repurchase  or redemption to be made by Holdings, the Borrower or any Restricted Subsidiary, or give rise to a right  of, or result in, termination, cancellation or acceleration of any obligation thereunder, and (d) will not result  in the creation or imposition of any Lien on any asset of Holdings, the Borrower or any Restricted  Subsidiary, except Liens created under the Loan Documents, except (in the case of each of clauses (a),  (b)(ii) and (c)) to the extent that the failure to obtain or make such consent, approval, registration, filing or  action, or such violation, default or right as the case may be, individually or in the aggregate, could not  reasonably be expected to have a Material Adverse Effect.  SECTION 3.04 Financial Condition; No Material Adverse Effect.  (a) The Audited Financial Statements and Unaudited Financials (i) were prepared in  accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise  expressly indicated therein and subject to year-end adjustments and the lack of accruals for taxes and the  absence of footnotes, and (ii) fairly present in all material respects the consolidated financial position of the  Target (or its predecessor, if applicable) and its consolidated subsidiaries as of the respective dates thereof  and the consolidated results of their operations for the respective periods then ended in accordance with  GAAP consistently applied during the periods referred to therein, except as otherwise expressly indicated  therein and subject to year-end adjustments or the lack of accruals for taxes and the absence of footnotes.  (b) The Pro Forma Financial Statements have been prepared in good faith, based on  assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly  in all material respects the estimated financial position of the Borrower and its Subsidiaries as if the  Transactions had occurred as of the relevant date (in the case of any pro forma consolidated balance sheet)  or at the beginning of such period (in the case of any pro forma statement of income or operations).  (c) Since the Effective Date, there has been no Material Adverse Effect.  SECTION 3.05 Properties.   (a) The Borrower and each Restricted Subsidiary has good title to, or valid leasehold interests  in, all its real and personal property material to its business (including the Mortgaged Properties, if any),  (i) free and clear of all Liens except for Liens permitted by Section 6.02 and (ii) free of title defects except  for defects in title that do not interfere with its ability to conduct its business as currently conducted or as  proposed to be conducted or to utilize such properties for their intended purposes, in each case, except as  could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  (b) As of the Effective Date, Schedule 3.05 contains a true and complete list of the Material  Real Property.  SECTION 3.06 Litigation, Environmental and Labor Matters.  (a) Except as set forth on Schedule 3.06, (i) there are no actions, suits or proceedings by or  before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower,  threatened against or affecting the Borrower or any Restricted Subsidiary that could reasonably be expected,  individually or in the aggregate, to result in a Material Adverse Effect and (ii) none of the Borrower or any  Subsidiary has treated, stored, transported, Released or disposed of Hazardous Materials at or from any  





 






133  currently or formerly owned real property or facility relating to its business in a manner that could  reasonably be expected to have a Material Adverse Effect.   (b) Except with respect to any matters that, individually or in the aggregate, could not  reasonably be expected to result in a Material Adverse Effect, none of the Borrower or any Restricted  Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any  permit, license or other approval required under any Environmental Law, (ii) has, to the knowledge of the  Borrower, become subject to any Environmental Liability, (iii) has received written notice of any claim  with respect to any Environmental Liability or (iv) has, to the knowledge of the Borrower, any basis to  reasonably expect that Holdings, the Borrower or any Restricted Subsidiary will become subject to any  Environmental Liability.  (c) Except with respect to any matters that, individually or in the aggregate, could not  reasonably be expected to result in a Material Adverse Effect, (a) there are no strikes or other labor disputes  against Holdings, the Borrower or any Restricted Subsidiary pending or, to the knowledge of the Borrower,  threatened in writing and (b) none of the Borrower or the Restricted Subsidiaries have been in violation of  the Fair Labor Standards Act or any other Requirements of Law dealing with wage and hour matters.  SECTION 3.07 Compliance with Laws.  Each of Holdings, the Borrower and each Restricted  Subsidiary is in compliance with all Requirements of Law (including Heath Care Laws and Data Protection  Requirements) applicable to it or its property except, where the failure to do so, individually or in the  aggregate, could not reasonably be expected to result in a Material Adverse Effect.  SECTION 3.08 Investment Company Status.  None of Holdings, the Borrower or any other  Loan Party is an “investment company” as defined in, or subject to regulation under, the Investment  Company Act of 1940, as amended from time to time.  SECTION 3.09 Taxes.  Except as could not, individually or in the aggregate, reasonably be  expected to have a Material Adverse Effect, Holdings, the Borrower and each Restricted Subsidiary (a) have  timely filed or caused to be filed all Tax returns required to have been filed and (b) have paid or caused to  be paid all Taxes required to have been paid (whether or not shown on a Tax return) including in their  capacity as tax withholding agents, except any Taxes  (i) that are not overdue by more than 30 days or (ii)  that are being contested in good faith by appropriate proceedings; provided that Holdings, the Borrower or  such Restricted Subsidiary, as the case may be, has set aside on its books adequate reserves therefor in  accordance with GAAP.  SECTION 3.10 ERISA; Foreign Pension Plans.  (a) Except as could not, individually or in the aggregate, reasonably be expected to result in a  Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code and  other federal or state laws and regulations and each Foreign Pension Plan is in compliance with all  applicable laws and regulations.   (b) No ERISA Event has occurred and, except as could not reasonably be expected,  individually or in the aggregate, to result in a Material Adverse Effect, no ERISA Event is expected to  occur.  Except as could not reasonably be expected, individually or in the aggregate, to result in a Material  Adverse Effect, (i) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to  incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of  ERISA, would result in such liability) under Section 4201 of ERISA with respect to a Multiemployer Plan  and (ii) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject  to Section 4069 or 4212(c) of ERISA.  





 






134  (c) As of the Effective Date, neither any Loan Party nor any ERISA Affiliate maintains,  contributes to or has any liability (whether actual or contingent) with respect to any Plan, Multiemployer  Plan or Foreign Pension Plan.  (d) As of the Effective Date, no Loan Party is (i) an employee benefit plan subject to Part IV  of Subtitle B of Title I of ERISA, (ii) a plan or account described in Section 4975 of the Code to which  Section 4975 of the Code applies, or (iii) an entity deemed to hold “plan assets” (within the meaning of  Section 3(42) of ERISA) of any such plans or accounts.  SECTION 3.11 Disclosure.    (a) The written information or written data (taken as a whole) heretofore or  contemporaneously furnished by the Borrower, any of its Subsidiaries or any of their respective authorized  representatives to any Agent or any Lender on or before the Effective Date (including all such information  contained in the Loan Documents) for purposes of, or in connection with, this Agreement or any transaction  contemplated hereby, is correct in all material respects and does not contain any untrue statement of material  fact and does not omit to state any material fact necessary to make the statements contained therein not  materially misleading in light of the circumstances under which such statements are made (after giving  effect to all supplements so furnished from time to time); it being understood and agreed that for purposes  of this Section 3.11, such information and data shall not include projections (including financial estimates,  forecasts and other forward-looking information), pro forma financial information or information of a  general economic or industry specific nature; provided that, with respect to projected and pro forma  financial information, the Borrower represents only that such information was prepared in good faith based  upon assumptions believed to be reasonable at the time of preparation and delivery; it being understood  that such projected and pro forma financial information is as to future events and not to be viewed as facts,  is subject to significant uncertainties and contingencies, many of which are beyond the control of the  Borrower and the Restricted Subsidiaries, that no assurance can be given that any particular projections will  be realized and that actual results during the period or periods covered by any such projections may differ  from the projected results and such differences may be material.  (b) As of the Closing Date, the information included in the Beneficial Ownership Certification  with respect to any beneficial owner (as defined in the Beneficial Ownership Regulation) of the Borrower,  is true and correct in all material respects to the best of the beneficial owner’s knowledge.  SECTION 3.12 Subsidiaries.  As of the Effective Date, Schedule 3.12 sets forth the name of,  and the ownership interest of Holdings and each Subsidiary in, each Subsidiary.  SECTION 3.13 Intellectual Property; Licenses, Etc..  Except as could not reasonably be  expected to have a Material Adverse Effect, each of the Borrower and each Restricted Subsidiary owns,  licenses or possesses the right to use, all of the rights to Intellectual Property that are reasonably necessary  for the operation of its business as currently conducted, and, to the knowledge of the Borrower, without  conflict with the rights of any Person.  To the knowledge of the Borrower, the Borrower or each Restricted  Subsidiary do not, in the operation of their businesses as currently conducted, infringe upon any Intellectual  Property rights held by any Person except for such infringements, individually or in the aggregate, which  could not reasonably be expected to have a Material Adverse Effect.  No claim or litigation regarding any  of the Intellectual Property owned by Holdings, the Borrower or any Restricted Subsidiary is pending or,  to the knowledge of the Borrower, threatened in writing against the Borrower or any Restricted Subsidiary,  which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.  SECTION 3.14 Solvency.  On the Effective Date, and after giving effect to the Transactions,  the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.  





 






135  SECTION 3.15 Federal Reserve Regulations.  No part of the proceeds of the Loans will be  used, directly or indirectly, to purchase or carry any margin stock or to refinance any Indebtedness originally  incurred for such purpose, or for any other purpose that entails a violation (including on the part of any  Lender) of the provisions of Regulations U or X of the Board of Governors.  SECTION 3.16 Security Interest in Collateral.  Subject to the provisions of this Agreement  (including, without limitation, the terms of the proviso to clause (f) of Section 4.01 and all Collateral  delivered after the Effective Date pursuant to Section 5.12) and the other relevant Loan Documents, the  Security Documents create legal, valid and enforceable Liens on all of the Collateral in favor of the  Collateral Agent, for the benefit of itself and the other Secured Parties, subject to applicable bankruptcy,  insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to  general principles of equity, regardless of whether considered in a proceeding in equity or at law.  Upon the  satisfaction of the applicable Perfection Requirements, such Liens constitute perfected Liens (with the  priority that such Liens are expressed to have under the relevant Security Documents) on the Collateral (to  the extent such Liens are required to be perfected under the terms of the Loan Documents) securing the  Secured Obligations, in each case as and to the extent set forth therein.  SECTION 3.17 USA Patriot Act, OFAC and FCPA.  (a) Holdings, the Borrower and the Subsidiaries will not use the proceeds of the Loans, or lend,  contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other  Person, for the purpose of funding or financing (i) any activities of or business with any Person who is the  target of applicable Sanctions, or in or with any country or territory that is the target of comprehensive  Sanctions (as of the Effective Date, the Crimea region of Ukraine, Cuba, Iran, Syria, and North Korea)  (each, a “Sanctioned Country”), or (ii) any other transaction that would constitute or give rise to a violation  by any Person (including any Person participating in the transaction, whether as underwriter, advisor,  investor, lender or otherwise) of Sanctions.  (b) Holdings, the Borrower and the Restricted Subsidiaries will not use the proceeds of the  Loans (i) for any payments to any governmental official or employee, political party, official of a political  party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain  or direct business or obtain any improper advantage, in violation of (A) the United States Foreign Corrupt  Practices Act of 1977, as amended (the “FCPA”) or (B) other anti-corruption laws applicable to the  Borrower and the Restricted Subsidiaries, or (ii) in violation of Title III of the USA Patriot Act.  (c) Each of Holdings, the Borrower and the Subsidiaries is in compliance in all material  respects with applicable Sanctions.  (d) Each of Holdings, the Borrower and the Restricted Subsidiaries is in compliance in (i) in  all material respects with Title III of the USA Patriot Act and (ii) other than as could not reasonably be  expected to result in a Material Adverse Effect, the FCPA.  (e) None of the Loan Parties or the Subsidiaries or, to the knowledge of Holdings and the  Borrower, any director, officer or employee of the Loan Parties or the Subsidiaries, is an individual or  entity: (i) currently on OFAC’s list of Specially Designated Nationals and Blocked Persons; (ii) located,  organized or resident in a Sanctioned Country; or (iii) that is otherwise the subject or target of Sanctions.  ARTICLE IV    CONDITIONS  





 






136  SECTION 4.01 Effective Date.  The obligations of the Lenders to make Loans and of each  Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each  of the following conditions shall be satisfied (or waived in accordance with Section 9.02):  (a) The Administrative Agent (or its counsel) shall have received from (i) a Responsible  Officer of each of Holdings and the Borrower, (ii) each of the Administrative Agent and the Collateral  Agent, (iii) each Lender, (iv) the Swingline Lender and (v) each Issuing Bank, either (x) a counterpart of  this Agreement signed on behalf of such party or (y) written evidence satisfactory to the Administrative  Agent (which may include a copy transmitted by facsimile or other electronic transmission of a signed  counterpart of this Agreement) that such party has signed a counterpart of this Agreement.  (b) The Administrative Agent shall have received a written opinion (addressed to the  Administrative Agent, the Collateral Agent and the Lenders and dated the Effective Date) of Simpson  Thacher & Bartlett LLP, as special New York counsel for the Loan Parties.  (c) The Administrative Agent shall have received a certificate of the Borrower, dated the  Effective Date and substantially in the form of Exhibit J, confirming compliance with the condition set forth  in Section 4.01(o)(ii).  (d) The Administrative Agent shall have received a certificate of each Loan Party, dated the  Effective Date, including or attaching a copy of (i) each Organizational Document of each Loan Party  certified, to the extent applicable, as of a recent date by the applicable Governmental Authority,  (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the  Loan Documents to which it is a party, (iii) resolutions of the Board of Directors of each Loan Party  approving and authorizing the execution, delivery and performance of Loan Documents to which it is a  party, certified as of the Effective Date by a Responsible Officer as being in full force and effect without  modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from  the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or  formation.  (e) All fees required to be paid on the Effective Date, including pursuant to the Fee Letter and  reasonable out-of-pocket expenses required to be paid on the Effective Date pursuant to the Commitment  Letter, and with respect to expenses, to the extent invoiced at least three Business Days (as defined in the  Merger Agreement) prior to the Effective Date (except as otherwise reasonably agreed by the Borrower),  shall, upon the initial Borrowings under the Credit Facilities hereunder, have been, or will be substantially  simultaneously, paid (which amounts may be offset against the proceeds of the Credit Facilities hereunder).  (f) The Collateral and Guarantee Requirement shall have been satisfied; provided that,  notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, to the  extent any security interest in any Collateral is not or cannot be provided and/or perfected on the Effective  Date (other than the pledge and perfection of the security interests (i) in the certificated Equity Interests, if  any, of the Borrower and any wholly-owned Domestic Subsidiary of Holdings that is a Restricted  Subsidiary and that is not an Immaterial Subsidiary (to the extent required by the Collateral and Guarantee  Requirement); provided that, in the case of subsidiaries of the Target, to the extent the Borrower has used  commercially reasonable efforts to procure the delivery thereof prior to the Effective Date, certificated  Equity Interests of the subsidiaries of the Target will only be required to be delivered on the Effective Date  pursuant to the terms set forth herein if such certificates are actually received from the Seller or the Target  and (ii) in other assets pursuant to which a security interest may be perfected by the filing of a financing  statement under the UCC but, for the avoidance of doubt, including the items described in clause (e) of the  definition of the term “Collateral and Guarantee Requirement”) after the Borrower’s use of commercially  reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a  





 






137  security interest in such Collateral shall not constitute a condition to the initial Borrowing under the Credit  Facilities to occur on the Effective Date and the Borrower agrees to deliver or cause to be delivered such  documents and instruments, and take or cause to be taken such other actions as may be required to provide  and/or perfect such security interests, with respect to any other Collateral (other than certificated Equity  Interests of the Target or any wholly-owned material U.S. restricted subsidiary of the Target not delivered  on the Effective Date, on or prior to the date that is five Business Days after the Effective Date, and with  respect to any other such Collateral, on or prior to the date that is 90 days after the Effective Date or, in  each case, such longer period of time as may be mutually agreed by the Collateral Agent and the Borrower,  each acting reasonably.   (g) Subject to the proviso in paragraph (f) above, each document (including any UCC (or  similar) financing statement) required by any Security Document or under applicable Requirements of Law  to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the  Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Security  Document, shall be in proper form for filing, registration or recordation.  (h) The Effective Date Refinancing shall have been consummated, or shall be consummated  substantially simultaneously with the initial Borrowing under any of the Credit Facilities.  (i) The Administrative Agent shall have received (i) the Audited Financial Statements, (ii) the  Unaudited Financials, and (iii) the Pro Forma Financial Statements.  (j) The Administrative Agent shall have received a certificate from the chief financial officer  (or other officer with reasonably equivalent responsibilities) of the Borrower certifying that the Borrower  and its Subsidiaries, on a consolidated basis after giving effect to the Transactions are Solvent.  (k) The Administrative Agent and the Joint Bookrunners shall have received, at least three  Business Days prior to the Effective Date, all documentation and other information about the Borrower and  the Guarantors that shall have been reasonably requested by the Administrative Agent or the Joint  Bookrunners in writing at least 10 Business Days prior to the Effective Date and that the Administrative  Agent and the Joint Bookrunners reasonably determine is required by United States regulatory authorities  under applicable “know your customer” and anti-money laundering rules and regulations, including without  limitation the USA Patriot Act, including, if the Borrower qualifies as a “legal entity customer” under the  Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower.    (l) The Equity Contribution shall have been made, or substantially simultaneously with the  initial Borrowing under any of the Credit Facilities hereunder, shall be made, in at least the amount set forth  in the definition thereof.  (m) Between the Signing Date and the Effective Date, no Company Material Adverse Effect  (as defined in the Merger Agreement as in effect on the Signing Date) shall have occurred.   (n) The Acquisition shall have been consummated, or substantially simultaneously with, the  Borrowing under any of the Credit Facilities hereunder, shall be consummated, in all material respects in  accordance with the terms of the Merger Agreement, after giving effect to any modifications, amendments,  supplements, consents, waivers or requests, other than those modifications, amendments, supplements,  consents, waivers or requests (including the effects of any such requests) that are materially adverse to the  interests of the Lenders or the Joint Lead Arrangers (including their affiliates with Commitments  hereunder).  





 






138  (o) The (i) Specified Merger Agreement Representations shall be true and correct but only to  the extent that Parent (or any of its affiliates) has the right (taking into account any applicable cure  provisions) to terminate its (or its affiliates’) obligations under the Merger Agreement or decline to  consummate the Acquisition (in each case in accordance with the terms thereof) as a result of a breach of  such representation in the Merger Agreement and (ii) the Specified Representations shall be true and correct  in all material respects on the Effective Date (unless such representations relate to an earlier date, in which  case, such representations shall have been true and correct in all materials respect as of such earlier date);  provided that, if any Specified Representation is qualified by or subject to a “material adverse effect”,  “material adverse change” or similar term or qualification, the definition thereof shall be the definition of  Company Material Adverse Effect (as defined in the Merger Agreement) for purposes of the making or  deemed making of such Specified Representation on, or as of, the Effective Date (or any date prior thereto).  (p) The Administrative Agent shall have received a Borrowing Request.  SECTION 4.02 Each Credit Event.  The obligation of each Lender to make a Loan on the  occasion of any Borrowing, and of each Issuing Bank to issue, amend (other than an amendment in respect  of a then outstanding Letter of Credit that does not increase the face amount thereof), renew or extend any  Letter of Credit is subject to receipt of the request therefor in accordance herewith and to the satisfaction  of the following conditions; provided that, the following conditions shall not apply to (i) extensions of credit  on the Effective Date (including any Letter of Credit being issued (or deemed issued) on the Effective Date),  (ii) any Borrowings under any Incremental Facility, the conditions of which are set forth in Section 2.20  and (iii) any extensions of credit or Borrowings under Section 2.24:  (a) The representations and warranties of each Loan Party set forth in the Loan Documents  shall be true and correct in all material respects on and as of the date of such Borrowing or the date of  issuance, amendment, renewal or extension of such Letter of Credit, as the case may be; provided that, to  the extent that such representations and warranties specifically refer to an earlier date, they shall be true  and correct in all material respects as of such earlier date; provided further that any representation and  warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true  and correct in all respects on the date of such credit extension or on such earlier date, as the case may be.  (b) At the time of and immediately after giving effect to such Borrowing or the issuance,  amendment, renewal or extension of such Letter of Credit, as the case may be, no Default or Event of  Default shall have occurred and be continuing.  (c) The Administrative Agent or, if applicable, the Swingline Lender, shall have received a  Borrowing Request in accordance with the requirements hereof or the Loan Parties shall have complied  with the requirements of 2.05(b), as applicable.  Each Borrowing (provided that a conversion or a continuation of a Borrowing shall not constitute a  “Borrowing” for purposes of this Section) and each issuance, amendment, renewal or extension of a Letter  of Credit after the Effective Date shall be deemed to constitute a representation and warranty by the  Borrower on the date of the applicable Borrowing as to the matters specified in clauses (a) and (b) of this  Section.  ARTICLE V    AFFIRMATIVE COVENANTS  Until the Termination Date shall have occurred, each of Holdings (solely with respect to Sections  5.04, 5.05 and 5.12) and the Borrower covenants and agrees with the Lenders that:   





 






139  SECTION 5.01 Financial Statements and Other Information.  The Borrower will furnish to the  Administrative Agent (for further distribution by the Administrative Agent to the Lenders):  (a) commencing with the fiscal year ending December 31, 2019, as soon as available, but in  any event within 120 days after the end of each fiscal year of the Borrower (or, in the case of the fiscal year  ending December 31, 2019, 150 days), the audited consolidated balance sheet of the Borrower as at the end  of such fiscal year, and the related audited consolidated statements of operations and consolidated  statements of comprehensive income, consolidated statements of changes in members’ equity and  consolidated audited statements of cash flows of the Borrower for such fiscal year, and related notes and  related explanations thereto, setting forth in each case (other than the fiscal year ended December 31, 2019  (with respect to which for the avoidance of doubt, no comparative consolidated figures or reconciliation  will be required)) in comparative form, the figures for the preceding fiscal year, all reported on by Ernst &  Young LLP or other independent public accountants of recognized national standing, which report and  opinion shall be prepared in accordance with generally accepted auditing standards, without a qualification  as to going concern as defined by Statement on Accounting Standards AU-C Section 570 “The Auditor’s  Consideration of an Entity’s Ability to Continue as a Going Concern” (or any similar statement under any  amended or successor rule as may be adopted by the Auditing Standards Board from time to time) or as to  the scope of the audit (other than, in each such case, (1) solely with respect to, or expressly resulting solely  from, an upcoming maturity date within twelve (12) months under the documentation governing any  Indebtedness, (2) the activities, operations, financial results, assets or liabilities of any Unrestricted  Subsidiaries or (3) any prospective breach of the Financial Maintenance Covenant), to the effect that such  consolidated financial statements present fairly in all material respects the consolidated financial position  and consolidated results of operations and cash flows of the Borrower and its consolidated Subsidiaries as  of the end of and for such year on a consolidated basis in accordance with GAAP consistently applied;  (b) commencing with the fiscal quarter ended September 30, 2019, as soon as available, but in  any event within 45 days after the end of each fiscal quarter of each fiscal year of the Borrower (or, in the  case of the fiscal quarters ending September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020  and September 30, 2020, 60 days), the unaudited consolidated balance sheet of the Borrower as at the end  of such fiscal quarter and the related unaudited consolidated statements of operations and unaudited  consolidated statements of comprehensive income, unaudited consolidated statements of changes in  members’ equity and consolidated unaudited statements of cash flows for such fiscal quarter and for the  elapsed portion of the fiscal year ended with the last day of such fiscal quarter, and the related unaudited  consolidated statement of cash flow for the portion of the fiscal year ended with the last day of such fiscal  quarter, and setting forth in each case (other than for the quarterly periods ending September 30, 2019,  December 31, 2019, March 31, 2020, June 30, 2020 and September 30, 2020 (with respect to which for the  avoidance of doubt, no comparative consolidated figures or reconciliation will be required)) in comparative  form the figures for the corresponding period or periods of (or, in the case of the balance sheets, as of the  end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material  respects the consolidated financial position and consolidated results of operations and cash flows of the  Borrower and its consolidated Subsidiaries as of the end of and for such fiscal quarter (except in the case  of cash flows) and such portion of the fiscal year on a consolidated basis in accordance with GAAP  consistently applied, subject to changes resulting from audit and normal year-end audit adjustments and to  the absence of footnotes;  (c) for any period in which a Subsidiary has been designated as an Unrestricted Subsidiary,  simultaneously with the delivery of the financial statements referred to in clauses (a) and (b) above for such  period, supplemental financial information necessary to eliminate the accounts of Unrestricted Subsidiaries  from such consolidated financial statements;  





 






140  (d) not later than five Business Days after any delivery of financial statements under clause  (a) or (b) above (excluding, in the case of clause (b) above, with respect to the fourth fiscal quarter of any  year), a Compliance Certificate of a Financial Officer (i) certifying as to whether a Default has occurred  and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken  with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with  Section 6.13 for such Test Period, (iii) setting forth reasonably detailed calculations in the case of financial  statements delivered under clause (a) above, beginning with the financial statements for the fiscal year of  the Borrower ending December 31, 2020, of Excess Cash Flow for such fiscal year and (iv) in the case of  financial statements delivered under clause (a) above, setting forth a reasonably detailed calculation of the  Net Proceeds received during the applicable period by or on behalf of the Borrower or any Subsidiary in  respect of any Disposition/Casualty Prepayment Event and the portion of such Net Proceeds that has been  invested or is intended to be reinvested in accordance with the first proviso in Section 2.11(c);  (e) not later than five Business Days after any delivery of financial statements under clause  (a) or (b) above (other than under clause (b) above, in respect of the fourth fiscal quarter of any year), a  narrative discussion and analysis of the financial condition and results of operations of the Borrower and  its Subsidiaries for such fiscal quarter or such fiscal year;  (f) not later than 120 days after the commencement of each fiscal year of the Borrower (or, in  the case of the first fiscal year following the Effective Date, 150 days) occurring prior to an IPO, a detailed  consolidated budget for the Borrower and its Subsidiaries for such fiscal year in a form customarily prepared  by the Borrower;  (g) promptly after the same become publicly available, copies of any annual, quarterly and  other regular, material periodic and special reports (including on Form 10-K, 10-Q or 8-K) and registration  statements which Holdings, the Borrower or any Restricted Subsidiary files with the SEC or any analogous  Governmental Authority in any relevant jurisdiction (other than amendments to any registration statement  (to the extent such registration statement, in the form it becomes effective, is delivered to the Administrative  Agent for further delivery to the Lenders), exhibits to any registration statement and, if applicable, any  registration statements on Form S-8 and other than any filing filed confidentiality with the SEC or any  analogous Governmental Authority in any relevant jurisdiction); and  (h) on a bi-weekly basis, commencing on November 9, 2022 and then on every other  Wednesday thereafter until the date on which both (x) the Borrower has delivered to the  Administrative Agent (and which has been distributed to the Lenders) the quarterly and/or annual  financial statements required by Section 5.01(a) and 5.01(b), respectively, together with the  accompanying Compliance Certificate required by Section 5.01(d) for such Test Period, which  Compliance Certificate shall demonstrate that the Total Net Leverage Ratio for such Test Period  does not exceed 3.00:1.00 and (y) no Default or Event of Default has occurred and continuing, a 13- week cash flow forecast for the period commencing with the calendar week immediately following  the week in which such forecast is required to be delivered, together with a comparison of actual  performance of the Borrower and its Restricted Subsidiaries for the two week period most recently  completed prior to the date on which such forecast is required to be delivered compared to projected  performance of the Borrower and its Restricted Subsidiaries for such two week period (such forecasts  and comparisons shall include such detail as may be requested and acceptable to the Required  Lenders); and  (i) (h) promptly following any request therefor, such other information (which may be in the  form of an officer’s certificate) regarding the operations, business affairs and financial condition of the  Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the  Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing;  





 






141  provided that none of the Borrower or any of its Restricted Subsidiaries will be required to disclose, permit  the inspection, examination or making copies or abstracts of, or discussion of, any document, information  or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii)  in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives  or contractors) is prohibited by law or any binding confidentiality agreement or (iii) is subject to attorney- client or similar privilege or constitutes attorney work product.  Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.01 may be  satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the  Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower (or another Parent Entity) filed with  the SEC or (B) the applicable financial statements of the Borrower (or any Parent Entity of the Borrower);  provided that to the extent such information relates to a Parent Entity, such information is accompanied by  consolidating information, which may be unaudited, that explains in reasonable detail the differences  between the information relating to such Parent Entity and its consolidated subsidiaries, on the one hand,  and the information relating to the Borrower and its consolidated Subsidiaries on a stand-alone basis, on  the other hand, and to the extent such information is in lieu of information required to be provided under  Section 5.01(a), such materials are accompanied by a report and opinion of Ernst & Young LLP or any  other independent registered public accounting firm of nationally recognized standing, which report and  opinion shall be prepared in accordance with generally accepted auditing standards, without any  qualification related to going concern as defined by Statement on Accounting Standards AU-C Section 570  “The Auditor’s Consideration of an Entity’s Ability to Continue as a Going Concern” (or any similar  statement under any amended or successor rule as may be adopted by the Auditing Standards Board from  time to time) or as to the scope of the audit (other than (1) solely with respect to, or expressly resulting  solely from, an upcoming maturity date within twelve (12) months under the documentation governing any  Indebtedness, (2) the activities, operations, financial results, assets or liabilities of any Unrestricted  Subsidiaries or (3) any prospective breach of the Financial Maintenance Covenant).  Documents required to be delivered pursuant to Section 5.01 may be delivered electronically and  if so delivered, shall be deemed to have been delivered on the earlier of the date (A) on which the Borrower  posts such documents, or provides a link thereto, on the Borrower’s or one of its Affiliates’ website on the  Internet or (B) on which such documents are posted on the Borrower’s behalf on Syndtrak or another  website, if any, to which each Lender and the Administrative Agent have access (whether a commercial,  third-party website or whether sponsored by the Administrative Agent); provided that:  (i) the Borrower  shall deliver such documents to the Administrative Agent upon its reasonable request until a written notice  to cease delivering such documents is given by the Administrative Agent and (ii) the Borrower shall notify  the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and upon  its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft  copies) of such documents.  The Administrative Agent shall have no obligation to request the delivery of  or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible  for timely accessing posted documents and maintaining its copies of such documents.  The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Bookrunners  will make available to the Lenders materials and/or information provided by or on behalf of the Borrower  hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another  similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may  have personnel who do not wish to receive material nonpublic information with respect to the Borrower or  its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment  and other market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees  that it will, upon the Administrative Agent’s reasonable request, use commercially reasonable efforts to  identify that portion of the Company Materials that may be distributed to the Public Lenders and that (i)  all  such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall  





 






142  mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Company  Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint  Bookrunners and the Lenders to treat such Company Materials as not containing any material non-public  information (although it may be sensitive and proprietary) with respect to the Borrower or its respective  Affiliates or its and their respective securities for purposes of United States federal and state securities laws  (provided, however, that to the extent such Company Materials constitute Information, they shall be treated  as set forth in Section 9.12); (iii) all Company Materials marked “PUBLIC” are permitted to be made  available through a portion of the Platform designated “Public Side Information”; and (iv) the  Administrative Agent and the Joint Bookrunners shall be entitled to treat any Company Materials that are  not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public  Side Information.”  Notwithstanding anything to the contrary in this Article V, and for the avoidance of doubt, anything  disclosed, examined inspected or otherwise made available pursuant to this Article V shall be subject to the  provisions of Section 9.12.  SECTION 5.02 Notices of Material Events.  Promptly after any Responsible Officer of the  Borrower obtains actual knowledge thereof, the Borrower will furnish to the Administrative Agent (for  distribution to each Lender through the Administrative Agent) written notice of the following:  (a) the occurrence of any Default; and  (b) (1) the filing or commencement of any action, suit or proceeding by or before any arbitrator  or Governmental Authority against or, to the knowledge of a Financial Officer or another senior executive  officer of Holdings or the Borrower, affecting Holdings, the Borrower or any of its Restricted Subsidiaries  or (2) the receipt of a written notice of an Environmental Liability or the occurrence of an ERISA Event,  or liability with respect to a Foreign Pension Plan, in each case that could, individually or in connection  with any other event or liability, reasonably be expected to result in a Material Adverse Effect.  Each notice delivered under this Section shall be accompanied by a written statement of a Responsible  Officer of Holdings or the Borrower setting forth the details of the event or development requiring such  notice and any action taken or proposed to be taken with respect thereto.  SECTION 5.03 Information Regarding Collateral. The Borrower will furnish to the  Administrative Agent promptly after the occurrence thereof (and in any event within 60 days or such longer  period as reasonably agreed to by the Administrative Agent) written notice of any change (i) in any Loan  Party’s legal name (as set forth in its certificate of organization or like document), (ii) in the jurisdiction of  incorporation or organization or the location of the chief executive office of any Loan Party or in the form  of its organization or (iii) in any Loan Party’s organizational identification number to the extent that such  Loan Party is organized or owns Mortgaged Property in a jurisdiction where an organizational identification  number is required to be included in a UCC financing statement for such jurisdiction.  SECTION 5.04 Existence; Conduct of Business.  Each of Holdings and the Borrower will, and  will cause each Subsidiary to, do or cause to be done all things necessary to obtain, preserve, renew, and  keep in full force and effect its legal existence and the rights, licenses, permits, privileges, franchises,  patents, copyrights, trademarks, trade names and all other Intellectual Property material to the conduct of  its business, in each case (other than the preservation of the legal existence of Holdings and the Borrower)  to the extent that the failure to do so could reasonably be expected to have a Material Adverse Effect;  provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted  under Section 6.03 or 6.06 or any Disposition permitted by Section 6.05.  





 






143  SECTION 5.05 Payment of Taxes, Etc.  Each of Holdings and the Borrower will, and will  cause each Restricted Subsidiary to, pay its obligations in respect of Taxes before the same shall become  delinquent or in default, except (a) where the failure to make payment could not reasonably be expected,  individually or in the aggregate, to result in a Material Adverse Effect, or (b) for Taxes that are being  contested in good faith by appropriate proceedings for which adequate reserves have been made in  accordance with GAAP.  SECTION 5.06 Maintenance of Properties.  The Borrower will, and will cause each Restricted  Subsidiary to, keep and maintain all property material to the conduct of its business in good working order  and condition, ordinary wear and tear excepted, except where the failure to do so could not reasonably be  expected to have, individually or in the aggregate, a Material Adverse Effect. In the event of the Release or  presence of any Hazardous Material on any real property of the Borrower or any Subsidiary, the Borrower  and its Subsidiaries, upon discovery thereof, shall take all reasonable and necessary steps to initiate and  expeditiously complete all response, corrective and other action required under Environmental Laws or by  a Governmental Authority to mitigate and eliminate any related Environmental Liability, and shall keep the  Administrative Agent informed of their actions and the results of such actions as the Administrative Agent  shall reasonably request, except where the failure to do so could not reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect.  SECTION 5.07 Insurance.  The Borrower will, and will cause each Restricted Subsidiary to,  maintain, with insurance companies that the Borrower believes (in the good faith judgment of the  management of the Borrower) are financially sound and responsible at the time the relevant coverage is  placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance which the  Borrower believes (in the good faith judgment of management of the Borrower) is reasonable and prudent  in light of the size and nature of its business) and against at least such risks (and with such risk retentions)  as the Borrower believes (in the good faith judgment of the management of the Borrower) are reasonable  and prudent in light of the size and nature of its business; and will furnish to the Lenders, upon the  reasonable written request from the Administrative Agent, information presented in reasonable detail as to  the insurance so carried.  Subject to Section 5.14, each such policy of insurance maintained by a Loan Party  shall (i) in the case of any liability policies, name the Collateral Agent and the Secured Parties as additional  insureds thereunder as its interests may appear and (ii) in the case of each casualty insurance policy  (excluding any business interruption insurance, workers’ compensation policy or employee liability policy),  contain an additional loss payable/mortgagee clause or endorsement that names Collateral Agent, on behalf  of the Secured Parties, as an additional loss payee/mortgagee thereunder.  If any portion of any Mortgaged  Property subject to FEMA rules and regulations is at any time located in an area identified by FEMA (or  any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made  available under the Flood Insurance Laws, then the Borrower shall, or shall cause the relevant Loan Party  to, (i) maintain or cause to be maintained, flood insurance sufficient to comply with all applicable rules and  regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent  evidence of such compliance, which evidence complies with applicable Flood Insurance Laws and rules  and regulations promulgated pursuant thereto.  SECTION 5.08 Books and Records; Inspection and Audit Rights; Lender call.    (a) The Borrower will, and will cause each Restricted Subsidiary to, maintain proper books of  record and account in which entries that are full, true and correct in all material respects and are in  conformity with GAAP (or applicable local standards) consistently applied shall be made of all material  financial transactions and matters involving the assets and business of Holdings, the Borrower or the  Restricted Subsidiaries, as the case may be.  The Borrower will, and will cause each Restricted Subsidiary  to, permit any representatives designated by the Administrative Agent, upon reasonable prior notice, to visit  and inspect its properties, to examine and make extracts from its books and records, and to discuss its  





 






144  affairs, finances and condition with its officers and independent accountants, all at such reasonable times  and as often as reasonably requested; provided that, only the Administrative Agent on behalf of the Lenders  may exercise visitation and inspection rights of the Administrative Agent and the Lenders under this  Section 5.08 and the Administrative Agent shall not exercise such rights more often than one time during  any calendar year absent the existence of an Event of Default, which visitation and inspection shall be at  the reasonable expense of the Borrower; provided, further that (i) when an Event of Default exists and is  continuing, the Administrative Agent (or any of its representatives or independent contractors) may do any  of the foregoing at the expense of the Borrower at any time during normal business hours and upon  reasonable advance notice and (ii) the Administrative Agent shall give the Borrower the opportunity to  participate in any discussions with the Borrower’s independent public accountants. Notwithstanding  anything to the contrary, none of Holdings, the Borrower or any Restricted Subsidiary will be required to  disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any  document, information or other matter (A) that constitutes non-financial trade secrets or non-financial  proprietary information, (B) in respect of which disclosure to any Agent or any Lender (or their respective  representatives or contractors) is prohibited by Requirements of Law or any binding confidentiality  agreement or (C) that is subject to attorney-client or similar privilege or constitutes attorney work product.  (b) At the request of the Administrative Agent and not more than once per calendar year, upon  reasonable prior notice and in any event not earlier than after delivery of the narrative discussion under  Section 5.01(e) for the prior year (beginning with the narrative discussion delivered with respect to the 2019  fiscal year), the Borrower shall host a conference call for the Lenders to discuss the performance of the  Borrower and its Restricted Subsidiaries during the fiscal year most recently ended.  SECTION 5.09 Compliance with Laws.  The Borrower will, and will cause each Restricted  Subsidiary to, comply with its Organizational Documents and all Requirements of Law (including  Environmental Laws, ERISA, Health Care Laws and Data Protection Requirements) applicable to it or its  property, except where the failure to do so, individually or in the aggregate, could not reasonably be  expected to result in a Material Adverse Effect.  SECTION 5.10 Use of Proceeds and Letters of Credit.  The proceeds of the Initial Term Loans,  together with the Equity Contribution and cash on hand at Target and its Subsidiaries, to pay the Effective  Date Refinancing, a portion of the Merger Consideration and the Transaction Costs.  On and after the  Effective Date, the proceeds of the Revolving Loans and Swingline Loans shall be used to finance the  working capital needs and other general corporate purposes of the Borrower and its Subsidiaries (including  for capital expenditures, working capital and/or purchase price adjustments, transactions fees and expenses  (in each case, including in connection with the Merger), Permitted Acquisitions and other Investments,  Restricted Payments and any other purposes not prohibited by the terms of the Loan Documents); provided  that any borrowing of Revolving Loans on the Effective Date shall only be used for, and not exceed the  amounts permitted by, the Permitted Initial Revolving Credit Borrowing Purposes.  Letters of Credit may  be issued (x) on the Effective Date in the ordinary course of business and to backstop, replace or otherwise  provide credit support for any letters of credit outstanding immediately prior to the Effective Date under  the Existing Credit Facility, and (y) after the Effective Date, for general corporate purposes of the Borrower  and its Subsidiaries, and any other purpose not prohibited by the terms of the Loan Documents.  The  proceeds of (i) any Incremental Term Loans shall be used for working capital and/or general corporate  purposes, Permitted Acquisitions and other Investments, Restricted Payments or such other purpose or  purposes set forth in the applicable Incremental Facility Amendment and (ii) any Replacement Revolving  Loans shall be used for working capital and/or general corporate purposes or such other purpose or purposes  set forth in the applicable Incremental Facility Amendment.  The proceeds of any Other Term Loans and  Other Revolving Loans shall be used for the purposes set forth in Section 2.24 and the proceeds of any  Credit Agreement Refinancing Indebtedness and Incremental Refinancing Indebtedness shall be applied  among the Loans and any Incremental Facilities in accordance with the terms of this Agreement. The  





 






145  proceeds of the 2020 Incremental Term Loans made pursuant to Amendment No. 1 shall be used to finance  the working capital needs and other general corporate purposes of the Borrower and its Subsidiaries  (including for capital expenditures, working capital and/or purchase price adjustments, transactions fees  and expenses, Permitted Acquisitions and other Investments, Restricted Payments and any other purposes  not prohibited by the terms of the Loan Documents). The proceeds of the 2021 Incremental Term Loans  made pursuant to Amendment No. 5 shall be used on Amendment No. 5 Effective Date to refinance in full  all of the Initial Term Loans outstanding hereunder as of Amendment No. 5 Effective Date (immediately  prior to giving effect to Amendment No. 5) and to pay fees and expenses related thereto. The proceeds of  the 2021-2 Incremental Term Loans made pursuant to Amendment No. 6 shall be used to finance the  working capital needs and other general corporate purposes of the Borrower and its Subsidiaries (including  for capital expenditures, working capital and/or purchase price adjustments, transactions fees and expenses,  Permitted Acquisitions and other Investments, Restricted Payments and any other purposes not prohibited  by the terms of the Loan Documents). The Borrower will not use the proceeds of the Loans: (i) for the  purpose of funding or financing (A) any activities of or business with any Person who is the target of  applicable Sanctions, or in or with any Sanctioned Country or (B) any other transaction that would  constitute or give rise to a violation by any Person (including any Person participating in the transaction,  whether as underwriter, advisor, investor, lender or otherwise) of Sanctions; or (ii) for any payments to any  governmental official or employee, political party, official of a political party, candidate for political office,  or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any  improper advantage, in violation of the FCPA.   SECTION 5.11 Additional Subsidiaries.  If any additional Restricted Subsidiary is formed or  acquired after the Effective Date, including, without limitation, upon the formation of any Subsidiary that  is a Divided Delaware LLC and is not otherwise an Excluded Subsidiary, the Borrower will, within 60 days  (or such longer period as the Administrative Agent shall reasonably agree) after such newly formed or  acquired Restricted Subsidiary is formed or acquired (unless such Subsidiary is an Excluded Subsidiary  and not otherwise required under the Loan Documents), notify the Administrative Agent thereof, and all  actions (if any) required to be taken with respect to such newly formed or acquired Subsidiary in order to  satisfy the Collateral and Guarantee Requirement shall have been taken with respect to such Subsidiary, the  assets of such Subsidiary and with respect to any Equity Interest in such Subsidiary owned by or on behalf  of any Loan Party within 60 days after such formation or acquisition (or such longer period as the  Administrative Agent shall reasonably agree); provided that any designation of an Unrestricted Subsidiary  as a Restricted Subsidiary or any Restricted Subsidiary ceasing to be an Excluded Subsidiary shall constitute  the formation or acquisition of a Restricted Subsidiary for purposes of this Section 5.11.  SECTION 5.12 Further Assurances.  (a) Each of Holdings and the Borrower will, and will cause each Loan Party to, execute any  and all further documents, financing statements, agreements and instruments, and take all such further  actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust,  account control agreements and other documents), that may be required under any applicable law and that  the Administrative Agent or the Required Lenders may reasonably request, to cause the Collateral and  Guarantee Requirement to be and remain satisfied at all times, all at the expense of the Loan Parties.  (b) If, after the Effective Date, any assets (including any Material Real Property) are acquired  by the Borrower or any other Loan Party (including any acquisition of any material assets upon the  formation of any Subsidiary that is a Divided Delaware LLC and is not otherwise an Excluded Subsidiary)  or are owned by any Restricted Subsidiary on or after the time it becomes a Loan Party pursuant to  Section 5.11 that are intended to be subject to the Liens created by any Security Document but are not so  subject to a Lien thereunder (other than assets (i) constituting Collateral under a Security Document that  have already become subject to the Lien created by such Security Document upon acquisition thereof or  





 






146  (ii) constituting Excluded Assets), the Borrower will promptly notify the Administrative Agent thereof,  and, within 90 days after such acquisition (or such longer period as the Administrative Agent shall  reasonably agree), the Borrower will cause such assets to be subjected to a Lien securing the Secured  Obligations and will take and cause the other Loan Parties to take, such actions as shall be necessary and  reasonably requested by the Administrative Agent and to satisfy the Collateral and Guarantee Requirement.  (c) If, after the Effective Date, any deposit account, securities account or commodities account  is opened or is held by the Borrower or any other Loan Party (including through any Permitted Acquisition  or following the formation of any Subsidiary) and is not otherwise an Excluded Account, each of Holdings  and the Borrower will, and will cause each Loan Party to, use commercially reasonable efforts to execute  an Account Control Agreement to cause the Collateral and Guarantee Requirement to be and remain  satisfied at all times. Notwithstanding the foregoing, the Loan Parties may close accounts (including  Controlled Accounts) and/or open accounts (including Controlled Accounts) without the Administrative  Agent’s consent, subject to the prompt execution and delivery to the Administrative Agent of an Account  Control Agreement with respect to any account (other than any Excluded Account) established or acquired  after the Effective Date.  The Administrative Agent shall execute any requested and customary notice of  termination to the account bank at which such Controlled Account has been maintained; provided that the  Loan Parties provide to the Administrative Agent an Account Control Agreement for a replacement  Controlled Account consistent with clause (e) of the definition of “Collateral and Guarantee Requirements”.   For the avoidance of doubt, the Loan Parties may open or close Excluded Accounts at any time, without  requirement of delivery of an Account Control Agreement. No notice of control may be issued by the  Collateral Agent to the account bank under any Account Control Agreement unless an Event of Default is  continuing.  SECTION 5.13 [Reserved].  SECTION 5.14 Certain Post-Closing Obligations.  (a) As promptly as practicable, and in any event within the time periods after the Effective  Date specified in Schedule 5.14 or such later date as the Administrative Agent reasonably agrees to in  writing, including to reasonably accommodate circumstances unforeseen on the Effective Date, Holdings,  the Borrower and each other Loan Party, as applicable, shall deliver the documents or take the actions  specified on Schedule 5.14 that would have been required to be delivered or taken on the Effective Date  but for the proviso to Section 4.01(f), in each case except to the extent otherwise agreed by the  Administrative Agent pursuant to its authority as set forth in the definition of “Collateral and Guarantee  Requirement”.  (b) Within 90 days after the Effective Date (or such longer period as the Administrative Agent  may agree in its sole discretion), the Borrower shall perform or cause to be performed the actions referred  to in paragraphs (e) and (f) of the definition of “Collateral and Guarantee Requirement.”  SECTION 5.15 Designation of Subsidiaries.  The Borrower may at any time after the Effective  Date, designate (or subsequently re-designate) any Restricted Subsidiary as an Unrestricted Subsidiary  (other than any Subsidiary that owns, directly or indirectly, any Equity Interests of, or holds a Lien on, any  Loan Party or any Restricted Subsidiary that is not being designated as an Unrestricted Subsidiary) or any  Unrestricted Subsidiary as a Restricted Subsidiary; provided that immediately before and after giving effect  to such designation on a pro forma basis, (i) no Event of Default shall have occurred and be continuing or  would result therefrom and (ii) the Total Net Cash Leverage Ratio would not exceed (x) during the  Suspension Period, 4.00:1.00, and (y) after the Suspension Period has ended, 7.00:1.00; provided further  that to the extent that any Restricted Subsidiary owns, or holds exclusive licenses or rights to, any  intellectual property that is material to the business and operations of the Borrower and the Restricted  





 






147  Subsidiaries (taken as a whole), no such Restricted Subsidiary may be designated as an Unrestricted  Subsidiary.  No Loan Party or any of its Restricted Subsidiaries shall transfer any ownership right, or  exclusive license or right to, any intellectual property that is material to the business and operations of the  Borrower and the Restricted Subsidiaries (taken as a whole) to any Unrestricted Subsidiary. The designation  of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective Date shall constitute an  Investment by the Borrower (or its applicable Restricted Subsidiary) therein at the date of designation in an  amount equal to the Fair Market Value of the Borrower’s or the applicable Restricted Subsidiary’s  investment therein.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall  constitute (x) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such  Subsidiary existing at such time, (y) a Return on any Investment by the Borrower or its applicable Restricted  Subsidiary in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the Fair  Market Value at the date of such designation of the Borrower’s or its Subsidiary’s Investment in such  Subsidiary, and (z) the formation or acquisition of a Restricted Subsidiary for purposes of Section 5.11.  ARTICLE VI    NEGATIVE COVENANTS  Until the Termination Date shall have occurred, each of Holdings (solely with respect to Section  6.06) and the Borrower covenants and agrees with the Lenders that:  SECTION 6.01 Indebtedness; Certain Equity Securities.  (a) The Borrower will not, and will not permit any Restricted Subsidiary to, incur or permit to  exist any Indebtedness, except:  (i) Indebtedness of the Borrower and the Restricted Subsidiaries under the Loan  Documents (including any Indebtedness incurred pursuant to Section 2.20 or 2.24);  (ii) Indebtedness (A) outstanding on the Effective Date; provided that Indebtedness  with an outstanding principal amount in excess of $5,000,000 shall only be permitted under this  clause (ii) if set forth on Schedule 6.01, and (B) any Permitted Refinancing thereof;  (iii) Guarantees by the Borrower and the Restricted Subsidiaries in respect of  Indebtedness of the Borrower or any Restricted Subsidiary otherwise permitted hereunder;  provided that if the Indebtedness being Guaranteed is subordinated to the Loan Document  Obligations, such Guarantee shall be subordinated to the Guarantee of the Loan Document  Obligations on terms at least as favorable (as reasonably determined by the Borrower) taken as a  whole, to the Lenders as those contained in the subordination of such Indebtedness;  (iv) Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower  or any Restricted Subsidiary to the extent permitted by Section 6.04; provided that all such  Indebtedness of any Loan Party owing to any Restricted Subsidiary that is not a Loan Party shall  be subordinated to the Loan Document Obligations pursuant to the Intercompany Note or otherwise  on terms (A) at least as favorable to the Lenders as those set forth in the form of Intercompany Note  or (B) otherwise reasonably satisfactory to the Administrative Agent;  (v) (A) Indebtedness (including Capital Lease Obligations) of the Borrower or any  Restricted Subsidiary the proceeds of which are used to finance the acquisition, development,  construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of  fixed or capital assets or other property (whether real or personal) (whether through the direct  





 






148  purchase of property or the Equity Interest of any person owning such property) or otherwise  incurred in respect of Capital Expenditures; provided that such Indebtedness is incurred  concurrently with or within 270 days after the applicable acquisition, development, construction,  repair, restoration, replacement, maintenance, upgrade, expansion or improvement; provided  further that, at the time of any such incurrence of Indebtedness and after giving pro forma effect  thereto and to the use of the proceeds thereof, the aggregate principal amount of Indebtedness then  outstanding under this clause (v)(A) shall not exceed an amount equal to the greater of (x)  $10,000,000 and (y) 10.0% of Consolidated Cash EBITDA for the Test Period most recently ended  on or prior to such date of incurrence (measured as of the date such Indebtedness is incurred based  upon the financial statements most recently delivered on or prior to such date pursuant to Section  5.01(a) or (b)) and (B) any Permitted Refinancing thereof;  (vi) Indebtedness in respect of Swap Agreements Incurred in the ordinary course of  business or consistent with past practice and, in each case, at the time entered into, not for  speculative purposes;  (vii) (A) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any  Person not previously a Restricted Subsidiary that is merged, consolidated or amalgamated with or  into the Borrower or any Restricted Subsidiary) after the Effective Date as a result of an Acquisition  Transaction or similar Investment permitted by this Agreement, or Indebtedness of any Person that  is assumed by the Borrower or any Restricted Subsidiary in connection with an Acquisition  Transaction or similar Investment or an acquisition of assets by the Borrower or such Restricted  Subsidiary permitted by this Agreement; provided that (1) such Indebtedness is not incurred in  contemplation of such Acquisition Transaction or similar Investment or acquisition of assets, (2)  other than with respect to a Limited Condition Transaction in which case, compliance with this  proviso shall be determined in accordance with Section 1.08, after giving pro forma effect to the  assumption of such Indebtedness and the transactions consummated in connection therewith, no  Event of Default shall have occurred and be continuing or would result therefrom, (3) such  Indebtedness is only the obligation of the Person and/or Person’s subsidiaries that are acquired or  that acquire the relevant assets and (4) at the time of such assumption thereof and after giving pro  forma effect thereto, the aggregate principal amount of such Indebtedness shall not exceed the  amount permitted by Section 6.01(a)(xxvi)(A)(II) as if such Indebtedness was Acquisition Debt,  except that the limitation in clause (IV) of Section 6.01(a)(xxvi)(A)(II) shall not apply to  Indebtedness assumed pursuant to this Section 6.01(a)(vii), and (B) any Permitted Refinancing  thereof;  (viii) Indebtedness in respect of Permitted Receivables Financings; provided that, at the  time of incurrence of such Indebtedness (and without giving effect to the incurrence of any such  Indebtedness and the use of proceeds thereof), the disposition of the Permitted Receivables  Financing Assets pursuant to such Permitted Receivables Financings is permitted by Section  6.05(g)(B);  (ix) Indebtedness representing deferred compensation to current and former officers,  directors, managers, employees, consultants or independent contractors of the Borrower (and any  Parent Entity) and the Restricted Subsidiaries incurred in the ordinary course of business;  (x) Indebtedness consisting of unsecured promissory notes issued by any Loan Party  to current or former officers, managers, consultants, independent contractors, directors and  employees or their respective estates, successors, Immediate Family Members or distributees to  finance the purchase or redemption of Equity Interests of the Borrower (or any Parent Entity)  permitted by Section 6.08(a);  





 






149  (xi) (A) Indebtedness arising from an agreement providing for indemnification  obligations, payment obligations in respect of any non-compete, consulting or similar arrangement,  or obligations in respect of purchase price (including earnouts) or other similar adjustments  incurred in an Acquisition Transaction or similar Investment permitted by this Agreement and any  other Investment or any Disposition, in each case permitted under this Agreement and (B)  Indebtedness arising from guaranties, letters of credit, bank guaranties, surety bonds, performance  bonds or similar instruments securing the performance pursuant to any such agreement described  in clause (A);  (xii) Indebtedness consisting of obligations under deferred compensation or other  similar arrangements incurred (A) in the ordinary course of business to current or former directors,  officers, employees, members of management, managers and consultants of the Borrower (or any  Parent Entity) and/or any Restricted Subsidiary and (B) in connection with the Transactions and  any Permitted Acquisition or other Investment permitted hereunder;  (xiii) Cash Management Obligations and other Indebtedness in respect of netting  services, overdraft protections and similar arrangements and Indebtedness arising from the  honoring of a bank or other financial institution of a check, draft or similar instrument drawn against  insufficient funds, in each case in the ordinary course of business;  (xiv) (A) Indebtedness of the Borrower or any Restricted Subsidiary; provided that at  the time of the incurrence thereof and after giving pro forma effect thereto and the use of the  proceeds thereof, the aggregate principal amount of Indebtedness then outstanding in reliance on  this clause (xiv) shall not exceed (x) during the Suspension Period, $6,250,000, and (y) after the  Suspension Period has ended, the greater of (I) $12,500,000 and (II) 25.0% of Consolidated Cash  EBITDA for the Test Period most recently ended on or prior to such date of incurrence (measured  as of the date such Indebtedness is incurred based upon the financial statements most recently  delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a)  or (b)) and (B) any Permitted Refinancing thereof;  (xv) Indebtedness consisting of (A) the financing of insurance premiums, (B) take-or- pay obligations contained in supply arrangements or (C) Guarantees of the obligations of suppliers,  customers, franchisees and licensees of the Borrower and the Restricted Subsidiaries, in each case  in the ordinary course of business or consistent with past practice;  (xvi) Indebtedness incurred by the Borrower or any Restricted Subsidiary in respect of  letters of credit, bank guarantees, warehouse receipts, bankers’ acceptances, or similar instruments  issued or created, or related to obligations or liabilities (other than Indebtedness) incurred in the  ordinary course of business or consistent with past practice, including in respect of workers  compensation claims, health, disability or other employee benefits or property, casualty or liability  insurance or self-insurance or other reimbursement-type obligations regarding workers  compensation claims;  (xvii) obligations in respect of self-insurance and obligations in respect of performance,  bid, appeal and surety bonds and performance, bankers acceptance facilities and completion  guarantees, leases, government or trade contracts and similar obligations provided by the Borrower  or any Restricted Subsidiary or obligations in respect of letters of credit, bank guarantees or similar  instruments related thereto, in each case in the ordinary course of business or consistent with past  practice;  





 






150  (xviii) Indebtedness comprising obligations in respect of take or pay contracts entered  into the ordinary course of business or consistent with past practice;  (xix) (A) Indebtedness (the Indebtedness incurred pursuant to this Section 6.01(a)(xix),  the “Ratio Indebtedness”) of the Borrower or any Restricted Subsidiary; provided that at the time  of the incurrence thereof and after giving pro forma effect thereto and the use of the proceeds  thereof, the aggregate principal amount of Indebtedness outstanding in reliance on this clause  (xix) shall not exceed the sum of (1) after the Suspension Period has ended, the Incremental Base  Amount available at such time (for the avoidance of doubt, no amount shall be available under this  clause (1) during the Suspension Period), plus (2) additional unlimited amounts so long as after  giving effect to the incurrence of such Ratio Indebtedness and the use of proceeds thereof,  calculated on a pro forma basis as of the Test Period most recently ended on or prior to such date  of incurrence (measured as of the date such Indebtedness is incurred based upon the financial  statements most recently delivered (or required to have been delivered) on or prior to such date  pursuant to Section 5.01(a) or (b)) (but excluding from the computation thereof the proceeds of  such Indebtedness) the Total Net Cash Leverage Ratio would not exceed (x) during the Suspension  Period, 4.00:1.00, and (y) after the Suspension Period has ended, 6.00:1.00; provided that (I)  clauses (a), (b) and (c) of the Required Additional Debt Terms shall have been satisfied, (II) the  aggregate principal amount of Ratio Indebtedness that is incurred by or secured by assets of  Restricted Subsidiaries that are not Loan Parties, when combined with the aggregate principal  amount of Acquisition Debt that has been incurred by Restricted Subsidiaries that are not Loan  Parties and is outstanding in reliance on clause (ii) of the proviso to clause (a)(xxvi)(A), shall not  exceed, at the time of incurrence thereof and after giving pro forma effect thereto and the use of  the proceeds thereof, the greater of (x) $12,500,000 and (y) 25.0% of Consolidated Cash EBITDA  for the Test Period most recently ended on or prior to such date of incurrence (measured as of the  date such Indebtedness is incurred based upon the financial statements most recently delivered (or  required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)) as of  such time, and (III) subject to Section 1.08, no Event of Default shall have occurred and be  continuing or would result therefrom; and (B) any Permitted Refinancing thereof; provided that the  opportunity to commit to provide all or a portion of any Indebtedness incurred pursuant to this  Section 6.01(a)(xix) shall be offered by the Borrower first to the existing Lenders on a pro rata  basis and, to the extent that such existing Lenders have not agreed to provide such Indebtedness  within five Business Days after receiving such offer from the Borrower (or the Administrative  Agent or any arranger of such Indebtedness on behalf of the Borrower), on the terms specified by  the Borrower, the Borrower may then offer such opportunity to other Persons (which may include  existing Lenders).  (xx) Indebtedness supported by a letter of credit issued in a principal amount not to  exceed the face amount of such letter of credit;  (xxi) Permitted Unsecured Refinancing Debt and any Permitted Refinancing thereof  constituting Indebtedness of the Borrower or any other Loan Party;  (xxii) Permitted Equal Priority Refinancing Debt and Permitted Junior Priority  Refinancing Debt, and any Permitted Refinancing thereof constituting Indebtedness of the  Borrower or any other Loan Party;  (xxiii) (A) Indebtedness (the Indebtedness incurred pursuant to this Section  6.01(a)(xxiii), “Incremental Equivalent Debt”) of the Borrower or any other Loan Party consisting  of (x) secured, subordinated or unsecured bonds, notes or debentures (which bonds, notes or  debentures, if secured, may be secured by Liens on the Collateral having (or intended to have) a  





 






151  priority ranking junior to the Liens on the Collateral securing the Secured Obligations or (y) secured  or unsecured loans (or commitments to provide loans or other extensions of credit) (which loans or  commitments, if secured, may be secured by Liens on the Collateral having (or intended to have) a  priority ranking junior to the Liens on the Collateral securing the Secured Obligations); provided  that  (1) the aggregate principal amount of all such Indebtedness incurred pursuant  to this clause shall not exceed at the time of incurrence thereof and after giving pro forma  effect to such incurrence and the use of proceeds thereof, the Incremental Cap at such time,   (2) the Required Additional Debt Terms shall have been satisfied,   (3) subject to Section 1.08, (A) no Event of Default shall have occurred and  be continuing or would result therefrom, and (B)  any Permitted Refinancing thereof,  (4) the opportunity to commit to provide all or a portion of any Indebtedness  incurred pursuant to this Section 6.01(a)(xxiii) shall be offered by the Borrower first to the  existing Lenders on a pro rata basis and, to the extent that such existing Lenders have not  agreed to provide such Indebtedness within five Business Days after receiving such offer  from the Borrower (or the Administrative Agent or any arranger of such Indebtedness on  behalf of the Borrower), on the terms specified by the Borrower, the Borrower may then  offer such opportunity to other Persons (which may include existing Lenders).  (xxiv) [Reserved];  (xxv) (A) Indebtedness of any Restricted Subsidiary that is not a Loan Party; provided  that at the time of incurrence thereof and after giving pro forma effect thereto and the use of the  proceeds thereof, the aggregate principal amount of Indebtedness incurred in reliance on this clause  (a)(xxv)(A) then outstanding shall not exceed an amount equal to the greater of (x) $5,000,000 and  (y) 10.0% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to  such date of incurrence (measured as of the date such Indebtedness is incurred based upon the  financial statements most recently delivered (or required to have been delivered) on or prior to such  date pursuant to Section 5.01(a) or (b)) and (B) any Permitted Refinancing thereof;   (xxvi) (A) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance  a Permitted Acquisition or similar Investment permitted by this Agreement (the Indebtedness  incurred pursuant to this Section 6.01(a)(xxvi), “Acquisition Debt”); provided that  (I) subject to Section 1.08, no Event of Default shall have occurred and be continuing or  would result therefrom,  (II) at the time of incurrence thereof and after giving pro forma effect thereto and the use  of the proceeds thereof, the aggregate principal amount of Acquisition Debt incurred in  reliance on this clause (xxvi) and then outstanding shall not exceed the sum of (A) after the  Suspension Period has ended, the Incremental Base Amount available at such time (for the  avoidance of doubt, no amount shall be available under this clause (A) during the  Suspension Period), plus (B) additional unlimited amounts so long as after giving effect to  the incurrence of such Acquisition Debt and the use of proceeds thereof, calculated on a  pro forma basis as of the Test Period most recently ended on or prior to such date of  incurrence (measured as of the date such Indebtedness is incurred based upon the financial  statements most recently delivered (or required to have been delivered) on or prior to such  





 






152  date pursuant to Section 5.01(a) or (b)) (but excluding from the computation thereof the  proceeds of such Indebtedness), the Total Net Cash Leverage Ratio would not exceed (x)  during the Suspension Period, 4.00:1.00, and (y) after the Suspension Period has ended,  6.00:1.00, in each case, calculated on a pro forma basis after giving effect to all other  transactions consummated in connection therewith;  (III) [reserved],  (IV) the aggregate principal amount of Acquisition Debt that is incurred by or secured by  the assets of Restricted Subsidiaries that are not Loan Parties, when combined with the  aggregate principal amount of Ratio Indebtedness that has been incurred by Restricted  Subsidiaries that are not Loan Parties and is outstanding in reliance on clause (III) of the  second proviso to clause (a)(xix)(A), shall not exceed, at the time of incurrence thereof,  and after giving pro forma effect thereto and the use of the proceeds thereof, the greater of  (x) $12,500,000 and (y) 25.0% of Consolidated Cash EBITDA for the Test Period most  recently ended on or prior to such date of incurrence (measured as of the date such  Indebtedness is incurred based upon the financial statements most recently delivered (or  required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b))  as of such time, and  (V) the Required Additional Debt Terms shall have been satisfied,   and (B) any Permitted Refinancing thereof; provided that the opportunity to commit to  provide all or a portion of any Indebtedness incurred pursuant to this Section 6.01(a)(xxvi)  shall be offered by the Borrower first to the existing Lenders on a pro rata basis and, to the  extent that such existing Lenders have not agreed to provide such Indebtedness within five  Business Days after receiving such offer from the Borrower (or the Administrative Agent  or any arranger of such Indebtedness on behalf of the Borrower), on the terms specified by  the Borrower, the Borrower may then offer such opportunity to other Persons (which may  include existing Lenders);  (xxvii) commission advances from insurance carriers made in the ordinary course of  business or consistent with past practice;  (xxviii) [reserved];  (xxix) [reserved];  (xxx) Settlement Indebtedness; and  (xxxi) all premiums (if any), interest (including post-petition interest), accretion or  amortization of original issue discount, fees, expenses, charges and additional or contingent interest  on obligations described in clauses (i) through (xxx) above.  (b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, issue any  Disqualified Equity Interests, except (x)  Disqualified Equity Interests issued to and held by Holdings, the  Borrower or any Restricted Subsidiary that is a direct or indirect wholly-owned subsidiary of the Borrower  and (y)  Disqualified Equity Interests issued after the Effective Date; provided that in the case of this clause  (y) any such issuance of Disqualified Equity Interests shall be deemed to be an incurrence of Indebtedness  and subject to the provisions set forth in Section 6.01(a).    





 






153  Notwithstanding anything to the contrary herein, for purposes of this Section 6.01, if any  Indebtedness (or a portion thereof) would be permitted pursuant to one or more provisions described  therein, the Borrower may divide, classify and reclassify such Indebtedness (or a portion thereof) (it being  understood that any reclassification of such Indebtedness from a basket or other non-incurrence based  exception to a ratio incurrence based exception shall require concurrent notice to the Administrative Agent),  in any manner that complies with the covenants set forth in this Sections 6.01 so long as the Indebtedness  (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as  of the date of such reclassification; provided that all Indebtedness outstanding under the Loan Documents  (including any Indebtedness outstanding under any Incremental Refinancing Facility) incurred to Refinance  (in whole or in part) such Indebtedness will be deemed to have been incurred in reliance only on the  exception set forth in Section 6.01(a)(i). The accrual of interest, the accretion of accreted value and the  payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of  Indebtedness for purposes of this Section 6.01.  Notwithstanding anything to the contrary herein (and notwithstanding any division, classification  or reclassification permitted by the foregoing paragraph), Indebtedness in respect of any receivables  programs, securitizations, factoring facilities, any facilities or programs relating to Permitted Receivables  Facility Assets and other similar facilities programs or arrangements may only be incurred pursuant to  Section 6.01(a)(viii) above and may not be incurred or permitted pursuant to any other clause in this Section  6.01.  In addition, for the avoidance of doubt, except to the extent incurred under Section 6.01(a)(i) or  Section 6.01(a)(xxii), any Indebtedness permitted to be incurred hereunder and secured by the Collateral  shall only be permitted to be secured by Liens on the Collateral that rank on a junior priority basis to the  Secured Obligations.  SECTION 6.02 Liens.  The Borrower will not, nor will it permit any Restricted Subsidiary to,  create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired  by it, except:  (i) Liens created under the Loan Documents, including Liens securing Incremental  Facilities;  (ii) Permitted Encumbrances;  (iii) Liens existing on the Effective Date (provided that Liens securing Indebtedness or  obligations in excess of $5,000,000 shall only be permitted under this Section 6.02(iii) if set forth  on Schedule 6.02) and any modifications, Refinancing, replacements, renewals or extensions  thereof (or successive modifications, Refinancings, replacements, renewals or extensions) upon or  in the same assets theretofor subject to such Lien other than (1)  after-acquired property that is  affixed or incorporated into the property covered by such Lien, (2) after-acquired property subject  to a Lien securing Indebtedness permitted under Section 6.01, the terms of which Indebtedness  require or include a pledge of after-acquired property (it being understood that such requirement  shall not be permitted to apply to any property to which such requirement would have not have  applied but for such acquisition) and (3) the proceeds and products thereof;  (iv) Liens securing Indebtedness permitted under Section 6.01(a)(v); provided that  (A) such Liens attach concurrently with or within 270 days after the acquisition, development,  construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement  (as applicable) of the property subject to such Liens, (B) such Liens do not at any time encumber  any property other than the property financed by such Indebtedness, except for accessions and  





 






154  additions to such property, replacements thereof and customary security deposits, related contract  rights and payment intangibles, and the proceeds and the products thereof, and any lease of such  property (including accessions thereto) and the proceeds and products thereof and (C) with respect  to Capital Lease Obligations, such Liens do not at any time extend to or cover any assets (except  for accessions and additions to such assets, replacements and products thereof and customary  security deposits, related contracts rights and payment intangibles, and the proceeds and products  of such assets) other than the assets subject to such Capital Lease Obligations; provided further that  individual financings of equipment provided by one lender may be cross collateralized to other  financings of equipment provided by such lender;  (v) leases, licenses, subleases or sublicenses (including the provisions of software or  the licensing of other Intellectual Property rights) and terminations thereof granted to others that  are entered into in the ordinary course of business or consistent with past practice or that do not  interfere in any material respect with the business of the Borrower and the Restricted Subsidiaries,  taken as a whole;  (vi) Liens in favor of customs and revenue authorities arising as a matter of law to  secure payment of customs duties in connection with the importation of goods;  (vii) Liens (A) of a collection bank arising under Section 4-210 of the Uniform  Commercial Code on items in the course of collection and (B) in favor of a banking institution  arising as a matter of law encumbering deposits (including the right of setoff) and that are within  the general parameters customary in the banking industry;  (viii) Liens (A) on cash advances or escrow deposits in favor of the seller of any property  to be acquired in an Investment permitted pursuant to Section 6.04 to be applied against the  purchase price for such Investment or otherwise in connection with any escrow arrangements with  respect to any such Investment or any Disposition permitted under Section 6.05 (including any  letter of intent or purchase agreement with respect to such Investment or Disposition) or  (B) consisting of an agreement to Dispose of any property in a Disposition permitted under  Section 6.05, in each case, solely to the extent such Investment or Disposition, as the case may be,  would have been permitted on the date of the creation of such Lien;  (ix) Liens on property of any Restricted Subsidiary that is not a Loan Party, which  Liens secure Indebtedness of such Restricted Subsidiary that is not a Loan Party, in each case, to  the extent such Indebtedness is non-recourse to any Loan Party and is permitted under  Section 6.01(a)(xxv);  (x) Liens granted by a Restricted Subsidiary that is not a Loan Party in favor of any  Loan Party (other than Holdings), Liens granted by a Restricted Subsidiary that is not a Loan Party  in favor of a Restricted Subsidiary that is not a Loan Party and Liens granted by a Loan Party (other  than Holdings) in favor of any other Loan Party (other than Holdings);  (xi) Liens existing on property at the time of its acquisition or existing on the property  of any Person at the time such Person becomes a Restricted Subsidiary, in each case after the  Effective Date; provided that (A) such Lien was not created in contemplation of such acquisition  or such Person becoming a Restricted Subsidiary, (B) such Lien does not extend to or cover any  other assets or property (other than the proceeds or products thereof and other than after-acquired  property subject to a Lien securing Indebtedness and other obligations incurred prior to such time  and which Indebtedness and other obligations are permitted under this Agreement that require or  include, pursuant to their terms at such time, a pledge of after-acquired property, it being understood  





 






155  that such requirement shall not be permitted to apply to any property to which such requirement  would not have applied but for such acquisition), and (C) the Indebtedness secured thereby is  permitted under Section 6.01(a)(v) or (vii);  (xii) any interest or title (and all encumbrances and other matters affecting such interest  or title) of a lessor or sublessor, licensor or sublicensor or secured by a lessor’s or sublessor’s,  licensor’s or sublicensor’s interest under leases (other than leases constituting Capital Lease  Obligations), subleases, licenses, cross licenses or sublicenses entered into by the Borrower or any  Restricted Subsidiary in the ordinary course of business or consistent with past practice, provided  that any interest or title granted under any licenses, cross-licenses, or sublicenses is non-exclusive  and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries,  taken as a whole;  (xiii) Liens arising out of conditional sale, title retention, consignment or similar  arrangements for sale or purchase of goods by the Borrower or any Restricted Subsidiary in the  ordinary course of business or consistent with past practice;  (xiv) Liens deemed to exist in connection with Investments in repurchase agreements  permitted under clause (e) of the definition of the term “Cash Equivalents”;  (xv) Liens encumbering reasonable and customary initial deposits and margin deposits  and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in  the ordinary course of business or consistent with past practice and not for speculative purposes;  (xvi) Liens that are contractual rights of setoff (A) relating to the establishment of  depository relations with banks not given in connection with the incurrence of Indebtedness,  (B) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar  obligations incurred in the ordinary course of business or consistent with past practice of the  Borrower or any Restricted Subsidiary or (C) relating to purchase orders and other agreements  entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of  business or consistent with past practice;  (xvii) ground leases in respect of real property on which facilities owned or leased by the  Borrower or any Restricted Subsidiary are located and any zoning or similar law or right reserved  to or vested in any Governmental Authority to control or regulate the use of any real property that  does not materially interfere with the ordinary conduct of the business of Holdings or any Restricted  Subsidiary;  (xviii) Liens on insurance policies and the proceeds thereof securing the financing of the  premiums with respect thereto;  (xix) Liens on the Collateral securing (A) Permitted Equal Priority Refinancing Debt,  (B) Permitted Junior Priority Refinancing Debt and (C) Incremental Equivalent Debt; provided that  (x)  if any such Indebtedness is secured by Liens on the Collateral that rank (or are intended to  rank) on an equal priority basis (but without regard to control of remedies) with the Liens on the  Collateral securing the Secured Obligations, such Indebtedness shall be subject to an Intercreditor  Agreement of the type described in clause (a) of the definition thereof providing that such Liens on  the Collateral shall rank on an equal priority basis with Liens on the Collateral securing the Secured  Obligations; provided, that no such Indebtedness under this clause (x) shall include Permitted  Junior Priority Refinancing Debt or Incremental Equivalent Debt and (y) if any such Indebtedness  (which shall include any Permitted Junior Priority Refinancing Debt or any Incremental Equivalent  





 






156  Debt) is secured by the Liens on the Collateral that rank (or are intended to rank) on a junior basis  to Liens on the Collateral securing the Secured Obligations, such Indebtedness shall be subject to  an Intercreditor Agreement described in clause (b) of the definition thereof providing that the Liens  on the Collateral shall rank on a junior basis to the Liens on the Collateral securing the Secured  Obligations; the Administrative Agent and the Collateral Agent, with the consent of the Required  Lenders (provided that if any such Intercreditor Agreement or amendment (or amendment and  restatement) to the Security Documents is posted to the Lenders three Business Days before being  executed and the Required Lenders shall not have objected thereto, the Required Lenders shall be  deemed to have agreed that the Administrative Agent’s and/or the Collateral Agent’s entry into  such Intercreditor Agreement or amendment (or amendment and restatement) to the Security  Documents is reasonable and to have consented to such Intercreditor Agreement or amendment (or  amendment and restatement) to the Security Documents and the Administrative Agent’s and/or the  Collateral Agent’s execution thereof), shall be authorized to negotiate, execute and deliver on  behalf of the Secured Parties any Intercreditor Agreement or any amendment (or amendment and  restatement) to the Security Documents or an Intercreditor Agreement to the extent necessary to  effect the provisions contemplated by this Section 6.02(xix);  (xx) other Liens; provided that at the time of incurrence of such Liens and the  obligations secured thereby (after giving pro forma effect to any such obligations) the aggregate  outstanding principal amount of obligations secured by Liens then outstanding in reliance on this  clause (xx) shall not exceed (x) during the Suspension Period, $6,250,000 and (y) after the  Suspension Period has ended, the greater of (I) $12,500,000 and (II) 25.0% of Consolidated Cash  EBITDA for the Test Period most recently ended on or prior to such date of incurrence (measured  as of the date of such incurrence based upon the financial statements most recently delivered (or  required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b));  provided further that, if such Liens are consensual Liens that are secured by the Collateral, then the  holders of the Indebtedness or other obligations secured thereby (or a representative or trustee on  their behalf) shall enter into an Intercreditor Agreement providing that the Liens on the Collateral  securing such Indebtedness or other obligations shall rank junior to the Liens on the Collateral  securing the Obligations, but in any event shall not be required to enter into a Intercreditor  Agreement if such Liens are on Collateral consisting solely of Cash and Cash Equivalents that do  not secure indebtedness for borrowed money; the Administrative Agent and the Collateral Agent,  with the consent of the Required Lenders (provided that if any such Intercreditor Agreement or  amendment (or amendment and restatement) to the Security Documents is posted to the Lenders  three Business Days before being executed and the Required Lenders shall not have objected  thereto, the Required Lenders shall be deemed to have agreed that the Administrative Agent’s  and/or the Collateral Agent’s entry into such Intercreditor Agreement or amendment (or  amendment and restatement) to the Security Documents is reasonable and to have consented to  such Intercreditor Agreement or amendment (or amendment and restatement) to the Security  Documents and the Administrative Agent’s and/or the Collateral Agent’s execution thereof), shall  be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Intercreditor  Agreement or any amendment (or amendment and restatement) to the Security Documents or an  Intercreditor Agreement to the extent necessary to effect the provisions contemplated by this  Section 6.02(xx);  (xxi) Liens on cash and Cash Equivalents used to satisfy and discharge Indebtedness;  provided such satisfaction and discharge is permitted hereunder;  (xxii) Liens on Permitted Receivables Financing Assets or Liens on other assets granted  pursuant to Standard Securitization Undertakings, in each case, incurred in connection with  Permitted Receivables Financings;  





 






157  (xxiii) receipt of progress payments and advances from customers in the ordinary course  of business to the extent the same creates a Lien on the related inventory and proceeds thereof;  (xxiv) (i) Liens on Equity Interests of Joint Ventures securing capital contributions to, or  obligations of, such Persons or pursuant to the relevant Joint Venture agreement or arrangement,  (ii) customary rights of first refusal and tag, drag and similar rights in Joint Venture agreements  and (iii) Liens solely on any cash earnest money deposits made by the Borrower or any of its  Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted  hereunder;  (xxv) Liens in respect of Sale Leasebacks in each case on the assets or property sold and  leased back in such Sale Leaseback; provided that, during the Suspension Period, after giving effect  to the incurrence of such Liens, the Total Net Cash Leverage Ratio would not exceed 4.00:1.00,  calculated on a pro forma basis as of the Test Period most recently ended on or prior to such date  of incurrence (measured as of the date such Liens are incurred based upon the financial statements  most recently delivered (or required to have been delivered) on or prior to such date pursuant to  Section 5.01(a) or (b));  (xxvi) Liens on cash and Cash Equivalents arising in connection with the defeasance,  discharge or redemption of Indebtedness for no longer than 60 days prior to such defeasance,  discharge or redemption;  (xxvii) Liens on cash or Cash Equivalents securing Swap Agreements in the ordinary  course of business submitted for clearing in accordance with applicable Requirements of Law and  that are not entered into for speculative purposes and Liens securing Indebtedness permitted under  Section 6.01(a)(xiii);  (xxviii) with respect to any Foreign Subsidiary, other Liens and privileges arising  mandatorily by Requirements of Law;  (xxix) Liens on real property that are not Mortgaged Properties (and not required to  become Mortgaged Properties);  (xxx) Liens securing Ratio Indebtedness permitted under Section 6.01(a)(xix),  Incremental Equivalent Debt permitted under Section 6.01(a)(xxiii) and Acquisition Debt  permitted under Section 6.01(a)(xxvi); provided that the holders of the Indebtedness or other  obligations secured thereby (or a representative or trustee on their behalf) shall enter into an  Intercreditor Agreement providing that the Liens on the Collateral securing such Indebtedness or  other obligations shall rank junior to the Liens on the Collateral securing the Obligations; the  Administrative Agent and the Collateral Agent, with the consent of the Required Lenders (provided  that if any such Intercreditor Agreement or amendment (or amendment and restatement) to the  Security Documents is posted to the Lenders three Business Days before being executed and the  Required Lender shall not have objected thereto, the Required Lenders shall be deemed to have  agreed that the Administrative Agent’s and/or the Collateral Agent’s entry into such Intercreditor  Agreement or amendment (or amendment and restatement) to the Security Documents is reasonable  and to have consented to such Intercreditor Agreement or amendment (or amendment and  restatement) to the Security Documents and the Administrative Agent’s and/or the Collateral  Agent’s execution thereof), shall be authorized to negotiate, execute and deliver on behalf of the  Secured Parties any Intercreditor Agreement or any amendment (or amendment and restatement)  to the Security Documents or an Intercreditor Agreement to the extent necessary to effect the  provisions contemplated by this Section 6.02(xxx);   





 






158  (xxxi) after the Suspension Period has ended, Liens on Equity Interests of Unrestricted  Subsidiaries (for the avoidance of doubt, no such Liens may be incurred during the Suspension  Period);  (xxxii) Liens on Cash Collateral granted in favor of any Lender and/or Issuing Bank  created as a result of any requirement or option to Cash Collateralize pursuant to this Agreement  or any other Loan Document;  (xxxiii) Settlement Liens;  (xxxiv) Liens securing any Indebtedness incurred pursuant to Section 6.01(xxvii); and  (xxxv) Liens on cash or Cash Equivalents securing Indebtedness permitted under Section  6.01(a)(xx) in an aggregate outstanding face amount not exceeding $5,000,000 at any time.  Notwithstanding anything to the contrary herein, for purposes of this Section 6.02, if any Lien (or  a portion thereof) would be permitted pursuant to one or more provisions described herein, the Borrower  may divide and classify such Liens (or a portion thereof) in any manner that complies with this Section  6.02, and may later divide and reclassify any such Lien (it being understood that any reclassification of a  Lien from a non-incurrence based exception to an incurrence based exception shall require concurrent  notice to the Administrative Agent), so long as the Lien (as so divided and/or reclassified) would be  permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided  that any Lien securing Indebtedness outstanding under the Loan Documents (including any Lien securing  any Indebtedness incurred under an Incremental Refinancing Facility to Refinance (in whole or in part)  such Indebtedness will be deemed to have been incurred in reliance only on the exception set forth in  Section 6.02(i).  SECTION 6.03 Fundamental Changes.  (x) The Borrower will not, nor will it permit any  Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any  Person to merge into or consolidate or amalgamate with it, or liquidate or dissolve, and (y) the Borrower  and the Restricted Subsidiaries, taken as a whole, will not Dispose of (whether in one transaction or in a  series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the  Borrower and the Restricted Subsidiaries, taken as a whole, to or in favor of any Person (other than as part  of the Transactions), except that:  (a) any Restricted Subsidiary of the Borrower may merge, consolidate or amalgamate with  (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person or (B) one or  more other Restricted Subsidiaries of the Borrower; provided that when any Subsidiary Loan Party is  merging, consolidating or amalgamating with any other Restricted Subsidiary either (1) the continuing or  surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a  Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted  Subsidiary is permitted under Section 6.04;  (b) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good  faith that such action is in the best interests of the Borrower and the Restricted Subsidiaries, taken as a  whole, and is not materially disadvantageous to the Lenders;  (c) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets  (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary; provided that  if the transferor in such a transaction is a Loan Party (other than Holdings), then either (A) the transferee  must be a Loan Party (other than Holdings), (B) to the extent constituting an Investment, such Investment  





 






159  must be an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 or (C) to  the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is  for Fair Market Value and any promissory note or other non-cash consideration received in respect thereof  is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;  (d) the Borrower may merge, amalgamate or consolidate with any other Person (including any  Subsidiary, but excluding Initial Holdings unless there is a Successor Holdings); provided that either (A) the  Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such  merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”),  (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any  State thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the  obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is  a party pursuant to a supplement hereto and thereto in form and substance reasonably satisfactory to the  Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such  merger, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and  substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens  as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this  Agreement and (4) the Borrower shall have delivered to the Administrative Agent (for further distribution  by the Administrative Agent to the Lenders) a certificate of a Responsible Officer and, if reasonably  requested by the Administrative Agent, an opinion of counsel, each stating that such merger, amalgamation  or consolidation complies with this Agreement; provided further that (x) if such merger, consolidation or  amalgamation is with a Person that prior to such transaction is not a Loan Party or another Restricted  Subsidiary, subject to Section 1.08, there is no continuing Event of Default that exists after giving effect to  such merger, amalgamation or consolidation and (y) if the foregoing requirements are satisfied, the  Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the  other Loan Documents; provided further that the Borrower agrees to provide any documentation and other  information about the Successor Borrower as shall have been reasonably requested in writing by any Lender  through the Administrative Agent that such Lender shall have reasonably determined is required by  regulatory authorities under applicable “know your customer” and anti-money laundering rules and  regulations, including Title III of the USA Patriot Act;  (e) The Borrower and its Subsidiaries may effect the formation, dissolution, liquidation or  Disposition of any Subsidiary that is a Divided Delaware LLC, provided that upon formation of such  Divided Delaware LLC, the Borrower has complied with Section 5.11, as applicable;  (f) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in  order to effect an Investment permitted pursuant to Section 6.04; provided that the continuing or surviving  Person shall be (or shall become) a Restricted Subsidiary, and shall have complied with the requirements  of Sections 5.11 and 5.12;  (g) the Borrower and its Restricted Subsidiaries may consummate the Acquisition and the  Merger, related transactions contemplated by the Merger Agreement (and documents related thereto) and  the Transactions; and  (h) the Borrower and its Subsidiaries may undertake or consummate a Tax Restructuring; and  (i) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or  amalgamation to (1) effect a Disposition permitted pursuant to Section 6.05, (2) make an Investment  permitted pursuant to Section 6.04 (other than clause (t) thereof) or (3) make a Restricted Payment permitted  pursuant to Section 6.08 (other than clause (a)(ii) thereof).  





 






160  SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions.  The Borrower  will not, nor will it permit any of its Restricted Subsidiaries to, make or hold any Investment, except:  (a) Investments in cash and Investments that are, at the time such Investment is made,  Investments in Cash Equivalents;  (b) loans or advances to present or former officers, directors, managers, members of  management, consultants, independent contractors and employees of any Parent Entity, the Borrower and  the Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment,  relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase of  Equity Interests in Holdings (or any other Parent Entity) (provided that the amount of such loans and  advances made in cash to such Person shall be substantially contemporaneously used to purchase such  Equity Interests and the proceeds of such loans and advances shall be substantially contemporaneously  contributed to the Borrower in cash as common equity or Qualified Equity Interests as consideration for the  purchase of such Equity Interests) and (iii) for purposes not described in the foregoing clauses (i) and (ii);  provided that at the time of incurrence thereof and after giving pro forma effect thereto, the aggregate  principal amount of all loans and advances then outstanding and made in reliance on this clause (iii) shall  not exceed the greater of (x) $5,000,000 and (y) 7.5% of Consolidated Cash EBITDA for the Test Period  most recently ended on or prior to such date of incurrence (measured as of the date such incurrence based  upon the financial statements most recently delivered (or required to have been delivered) on or prior to  such date pursuant to Section 5.01(a) or (b)); provided further that, during the Suspension Period, at the  time of incurrence thereof and after giving pro forma effect thereto, the aggregate principal amount of all  loans and advances then outstanding and made in reliance on clause (i) or (iii), in the aggregate, shall not  exceed $2,500,000;  (c) Investments (i) by the Borrower or any Restricted Subsidiary in any Loan Party (other than  Holdings), (ii) by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that  is not a Loan Party and (iii) by the Borrower or any Restricted Subsidiary that is a Loan Party in any  Restricted Subsidiary that is not a Loan Party (A) in connection with any series of substantially concurrent  transactions that result in the proceeds of the intercompany Investments ultimately being invested in (or  distributed to) the Borrower or a Restricted Subsidiary that is a Loan Party, (B) in connection with  reorganizations and related activities related to tax planning; provided that either (1) such reorganizations  or related activities are contemplated as of the Effective Date or (2) after giving pro forma effect to any  such reorganization and related activities, the value of the Collateral, taken as a whole, and the value of the  guarantees, taken as a whole, are not materially impaired (it being understood that the contribution of Equity  Interests of any Foreign Subsidiary or FSHCO to a newly created Foreign Subsidiary or FSHCO shall be  permitted without restriction), and (C) in addition to Investments made pursuant to the foregoing clauses  (A) and (B), Investments (valued at the Fair Market Value of such Investments at the time such Investment  is made) in an aggregate amount, measured at the time such Investment is made and after giving pro forma  effect to such Investment, equal to the sum of (I) the greater of (x) $10,000,000 and (y) 10.0% of  Consolidated Cash EBITDA for the Test Period most recently ended on or prior to the date of such  Investment (measured as of the date such Investment based upon the financial statements most recently  delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)),  (II) the Available Equity Amount at such time that is Not Otherwise Applied (for the avoidance of doubt,  no Investment shall be made in reliance on clause (b) of the Available Equity Amount during the Suspension  Period) and (III) the Available Amount at such time that is Not Otherwise Applied; provided that, in the  case of this clause (III), (x) no Event of Default has occurred and is continuing (or would occur after giving  pro forma effect to such action) and (y) after giving pro forma effect to such Investment on a pro forma  basis as of the last day of the Test Period most recently ended on or prior to such date of such Investment  (measured as of the date such Investment is made based upon the financial statements most recently  delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)),  





 






161  the Total Net Cash Leverage Ratio is less than or equal to (1) during the Suspension Period, 4.00:1.00, and  (2) after the Suspension Period has ended, 7.00:1.00;  (d) Investments consisting of deposits, prepayments and/or other credits to suppliers in the  ordinary course of business;  (e) Investments consisting of extensions of trade credit and accommodation guarantees in the  ordinary course of business or consistent with past practice;  (f) Investments (i) existing on the Effective Date and any modification, replacement, renewal,  reinvestment or extension thereof or (ii) contemplated on the Effective Date and any modification,  replacement, renewal, reinvestment or extension thereof, provided that the amount of the original  Investment permitted under this clause (f) is not increased except by the terms of such Investment to the  extent, if applicable, set forth on Schedule 6.04(f) or as otherwise permitted by this Section 6.04, provided  that (x) Investments in an amount in excess of $2,500,000 shall only be permitted under clause (f)(ii) if set  forth on Schedule 6.04(f) and (y) the amount of the original Investment permitted under this clause (f) is  not increased except by the terms of such Investment to the extent, if applicable, set forth on Schedule  6.04(f) or as otherwise permitted by this Section 6.04;   (g) Investments in Swap Agreements permitted under Section 6.01;  (h) promissory notes and other Investments (including non-cash consideration) received in  connection with Dispositions permitted by Section 6.05;  (i) Permitted Acquisitions; provided that the aggregate amount of Acquisition Consideration  relating to all such Permitted Acquisitions made or provided by the Borrower or any Loan Party to acquire  any Restricted Subsidiary that does not become a Loan Party or merge, consolidate or amalgamate into the  Borrower or a Loan Party or any assets that shall not, immediately after giving pro forma effect to such  Permitted Acquisition, be owned by the Borrower or a Loan Party, shall not exceed an aggregate amount,  measured at the time such Investment is made and after giving pro forma effect to such Investment, equal  to the sum of (i) (x) during the Suspension Period, $5,000,000, and (y) after the Suspension Period has  ended, the greater of (I) $12,500,000 and (II) 25.0% of Consolidated Cash EBITDA for the Test Period  most recently ended on or prior to the date of such Investment or acquisition (measured as of the date such  Investment or acquisition based upon the financial statements most recently delivered (or required to have  been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)), (ii) the Available Equity Amount  at such time that is Not Otherwise Applied (for the avoidance of doubt, no acquisition shall be made in  reliance on clause (b) of the Available Equity Amount during the Suspension Period) and (iii) the Available  Amount at such time that is Not Otherwise Applied; provided that, in the case of this clause (iii), (x) no  Event of Default has occurred and is continuing (or would occur after giving pro forma effect to such action)  and (y) after giving pro forma effect to such Investment on a pro forma basis as of the last day of the Test  Period most recently ended on or prior to such date of such Investment (measured as of the date such  Investment is made based upon the financial statements most recently delivered (or required to have been  delivered) on or prior to such date pursuant to Section 5.01(a) or (b)), the Total Net Cash Leverage Ratio is  less than or equal to (x) during the Suspension Period, 4.00:1.00, and (y) after the Suspension Period has  ended, 7.00:1.00;  (j) obligations with respect to Guarantees provided by Holdings, the Borrower or any  Restricted Subsidiary in respect of leases (other than Financing Lease Obligations) or of other obligations  that do not constitute Indebtedness, in each case entered into in the ordinary course of business or consistent  with past practice;  





 






162  (k) Investments in the ordinary course of business or consistent with past practice consisting  of endorsements for collection or deposit and customary trade arrangements with customers;  (l) Investments (including debt obligations and Equity Interests) (i) received in connection  with the bankruptcy or reorganization of suppliers and customers, from financially troubled account debtors  or in settlement of delinquent obligations of, or other disputes with, customers and suppliers or upon the  foreclosure with respect to any secured Investment or other transfer of title with respect to any secured  Investment, (ii) in satisfaction of judgments against other Persons, (iii) as a result of a foreclosure by the  Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with  respect to any secured Investment in default and (iv) as a result of the settlement, compromise or resolution  of (a) litigation, arbitration or other disputes or (b) obligations of trade creditors or customers that were  incurred in the ordinary course of business or consistent with industry practice of the Borrower or any  Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the  bankruptcy or insolvency of any trade creditor or customer;  (m) loans and advances to Holdings (or any other Parent Entity) in lieu of, and not in excess of  the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof),  Restricted Payments to the extent permitted to be made to Holdings (or such other Parent Entity) in  accordance with Section 6.08(a) (other than clause (ii) thereof); provided that any such loan or advance  shall reduce the amount of such applicable Restricted Payments thereafter permitted under Section 6.08(a)  by a corresponding amount (if the applicable provision of Section 6.08(a) contains a maximum amount);  provided further that any conditions, if any, to the making of such Restricted Payment shall be satisfied;  (n) additional Investments and other acquisitions; provided that at the time any such  Investment or other acquisition is made and after giving pro forma effect thereto, the aggregate amount of  such Investment or acquisition made in reliance on this clause (n) (including the aggregate amount of all  consideration paid in connection with all other Investments and acquisitions made in reliance on this clause  (n), whether in the form of Indebtedness assumed or otherwise), shall not exceed sum of (A) (i) the greater  of (x) $12,500,000 and (y) 25.0% of Consolidated Cash EBITDA for the Test Period most recently ended  on or prior to the date of such Investment or acquisition (measured as of the date such Investment or  acquisition based upon the financial statements most recently delivered (or required to have been delivered)  on or prior to such date pursuant to Section 5.01(a) or (b)), plus (ii) after the Suspension Period has ended,  Investments in an aggregate amount not to exceed the portion, if any, of the Restricted Payment Amount,  on the relevant date of determination that the Borrower elects to apply pursuant to this clause (ii) (for the  avoidance of doubt, no Investment shall be made in reliance on this clause (ii) during the Suspension  Period), plus (iii) after the Suspension Period has ended, Investments in an aggregate outstanding amount  not to exceed the portion, if any, of the Restricted Debt Payment Amount, on the relevant date of  determination that the Borrower elects to apply pursuant to this clause (iii) (for the avoidance of doubt, no  Investment shall be made in reliance on this clause (iii) during the Suspension Period), plus (B) the  Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of  such Investment; provided that, in the case of this clause (B), (x) no Event of Default has occurred and is  continuing (or would occur after giving pro forma effect to such action) and (y) after giving pro forma  effect to such Investment on a pro forma basis as of the last day of the Test Period most recently ended on  or prior to such date of such Investment (measured as of the date such Investment is made based upon the  financial statements most recently delivered (or required to have been delivered) on or prior to such date  pursuant to Section 5.01(a) or (b)), the Total Net Cash Leverage Ratio is less than or equal to (I) during the  Suspension Period, 4.00:1.00, and (II) after the Suspension Period has ended, 7.00:1.00, plus (C) the  Available Equity Amount that is Not Otherwise Applied as in effect immediately prior to the time of making  of such Investment (for the avoidance of doubt, no Investment shall be made in reliance on clause (b) of  the Available Equity Amount during the Suspension Period);  





 






163  (o) [reserved];  (p) advances of payroll payments to employees, consultants or independent contractors or  other advances of salaries or compensation to officers, managers, employees, consultants or independent  contractors, in each case in the ordinary course of business or consistent with past practice;  (q) Investments and other acquisitions to the extent that payment for such Investments is made  with Qualified Equity Interests (excluding Cure Amounts) of Holdings or the Borrower (or any Parent  Entity thereof); provided that such amounts used pursuant to this clause (q) shall not increase the Available  Equity Amount;  (r) (i) Investments of a Restricted Subsidiary acquired after the Effective Date or of a Person  merged or consolidated with the Borrower or any Restricted Subsidiary in accordance with this Section and  Section 6.03 after the Effective Date and (ii) Investments of an Unrestricted Subsidiary prior to the date on  which such Unrestricted Subsidiary is designated a “Restricted Subsidiary”, in each case, to the extent that  such Investments were not made in contemplation of or in connection with such acquisition, merger,  amalgamation or consolidation or such designation and were in existence on the date of such acquisition,  merger, amalgamation or consolidation or such designation;  (s) Investments in the Borrower or any Restricted Subsidiary in connection with any Tax  Restructuring; provided that, after giving effect to any such activities, the Guarantees of the Loans and the  security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired in any  material respect;  (t) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and  Restricted Payments permitted (other than by reference to this Section 6.04(t)) under Sections 6.01 (other  than clause (a)(iii) thereof), 6.02, 6.03 (other than clause (i) thereof), 6.05 (other than clause (e) thereof)  and 6.08, respectively;  (u) [reserved];  (v) contributions to a “rabbi” trust for the benefit of employees, directors, consultants,  independent contractors or other service providers of Holdings (or any other Parent Entity), the Borrower  or any Restricted Subsidiary or other grantor trust subject to claims of creditors in the case of a bankruptcy  of Holdings or the Borrower;  (w) to the extent that they constitute Investments, purchases and acquisitions of inventory,  supplies, materials or equipment or purchases, acquisitions, licenses or leases of other assets, Intellectual  Property, or other rights, in each case in the ordinary course of business or consistent with past practice;  (x) Investments in the form of debt or Equity Interests obtained in connection with the  contribution, sale, or other transfer of Permitted Receivables Financing Assets made in connection with a  Permitted Receivables Financing to the extent permitted by Section 6.05(g)(B);  (y) Investments made in connection with the Transactions;  (z) after the Suspension Period has ended, Investments (i) in Joint Ventures and Unrestricted  Subsidiaries, or (ii) in any Restricted Subsidiary to enable such Restricted Subsidiary to make substantially  concurrent Investments in Joint Ventures and Unrestricted Subsidiaries; provided that at the time any such  Investment is made and after giving pro forma effect thereto, the aggregate outstanding amount of such  Investments made in reliance on this clause (z) shall not exceed the sum of the greater of (x) $10,000,000  





 






164  and (y) 20.0% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to the  date of such Investment (measured as of the date such Investment based upon the financial statements most  recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a)  or (b)) (for the avoidance of doubt, no Investment shall be made in reliance on this clause (z) during the  Suspension Period);   (aa) Investments in any Restricted Subsidiary or any Joint Venture in connection with  intercompany cash management arrangement or related activities arising in the ordinary course of business;  (bb) unfunded pension fund and other employee benefit plan obligations and liabilities to the  extent that the same are permitted to remain unfunded under applicable Requirements of Law;   (cc) Investments in Similar Business; provided that, at the time any such Investment is made  and after giving pro forma effect thereto, the aggregate outstanding amount of such Investments made in  reliance on this clause (cc) shall not exceed (x) during the Suspension Period, $5,000,000, and (y) after the  Suspension Period has ended, the greater of (I) $10,000,000 and (II) 20.0% of Consolidated Cash EBITDA  for the Test Period most recently ended on or prior to the date of such Investment (measured as of the date  such Investment based upon the financial statements most recently delivered (or required to have been  delivered) on or prior to such date pursuant to Section 5.01(a) or (b));  (dd) [reserved];  (ee) receivables owing to the Borrower or any Restricted Subsidiary, if created or acquired in  the ordinary course of business or consistent with past practice;  (ff) Investments (A) for utilities, security deposits, leases and similar prepaid expenses incurred  in the ordinary course of business or consistent with past practice and (B) trade accounts created, or prepaid  expenses accrued, in the ordinary course of business;  (gg) Investments in the ordinary course of business in connection with Settlements; and  (hh) any Investment made in GoHealth s.r.o. in an aggregate amount not exceeding in any fiscal  year the following amounts corresponding to such fiscal year: $5,000,000 during the 2019 fiscal year,  $10,000,000 during the 2020 fiscal year, $10,000,000 during the 2021 fiscal year, $10,000,000 during the  2022 fiscal year, $15,000,000 during the 2023 fiscal year, $15,000,000 during the 2024 fiscal year and  $10,000,000 during the 2025 fiscal year.  SECTION 6.05 Asset Sales.  The Borrower will not, nor will it permit any of its Restricted  Subsidiaries to (i) sell, transfer, lease, license or otherwise dispose (including any disposition of property  or assets to a Divided Delaware LLC pursuant to a Delaware LLC Division) of any asset, including any  Equity Interest owned by it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest  in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to  foreign nationals to the extent required by applicable Requirements of Law, (B) issuing Equity Interests to  the Borrower or any Restricted Subsidiary in compliance with Section 6.04(c) and (C) any non-wholly- owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests  of such Subsidiary ratably based on their relative ownership interests), in each case, having a Fair Market  Value, in a single transaction or a series of related transactions, as of the date of such transaction(s)  exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate in any fiscal year (each, a  “Disposition”), except:  





 






165  (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired,  if made in good faith determination of the board of directors of the Borrower and/or in the ordinary course  of business or consistent with past practice and Dispositions of property no longer used or useful, or  economically practicable to maintain, in the conduct of the business of the Borrower and the Restricted  Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual  Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned,  or be invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue  or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual  Property) if the Borrower determines in its reasonable business judgment that such discontinuance is  desirable in the conduct of its business and does not materially interfere with the business of the Borrower  and the Restricted Subsidiaries, taken as a whole;  (b) Dispositions of inventory and other assets in the ordinary course of business or consistent  with past practice (including on an intercompany basis);  (c) Dispositions of property to the extent that (i) such property is exchanged for credit against  the purchase price of similar replacement property, or other assets of comparable or greater value or  usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly  applied to the purchase price of such replacement property;  (d) Dispositions of property to the Borrower or any Restricted Subsidiary; provided that if the  transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party (other  than Holdings), (ii) to the extent constituting an Investment, such Investment must be an Investment in a  Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 or (iii) to the extent constituting a  Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value  and any promissory note or other non-cash consideration received in respect thereof is an Investment in a  Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;  (e) Dispositions permitted by Section 6.03, Investments permitted by Section 6.04 (other than  clause (x) thereof), Restricted Payments permitted by Section 6.08 and Liens permitted by Section 6.02, in  each case, other than by reference to this Section 6.05(e);  (f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash  Equivalents when the relevant original Investment was made;  (g) (A) sales, discounts of or forgiveness of customer delinquent notes or delinquent accounts  receivable, notes receivable or other current assets in the ordinary course of business or consistent with  industry practice or the conversion of delinquent accounts receivable to notes receivable or other  dispositions of delinquent accounts receivable in connection with settlement, collection or compromise  thereof and (B) Dispositions of Permitted Receivables Financing Assets pursuant to any Permitted  Receivables Financing; provided that (x) the aggregate face amount of Permitted Receivables Financing  Assets subject to a Disposition for a Permitted Receivables Financing shall not exceed, at the time of any  such Disposition, $100,000,000 and (y) at the time of any such Disposition of Permitted Receivables  Financing Assets, the Borrower and the Restricted Subsidiaries shall be in compliance, after giving pro  forma effect to such Disposition or the use of proceeds thereof, with a Contract Asset Balance Coverage  Ratio (determined excluding from the Contract Asset Balance Coverage Ratio, the Permitted Receivables  Financing Assets so Disposed) that is no less than 2.00:1.00 as of the last day of the Test Period most  recently ended on or prior to such date of such Disposition (measured as of the date such Disposition is  made based upon the financial statements most recently delivered (or required to have been delivered) on  or prior to such date pursuant to Section 5.01(a) or (b));  





 






166  (h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business or  consistent with past practice or that do not materially interfere with the business of the Borrower and the  Restricted Subsidiaries, taken as a whole;  (i) transfers or other Dispositions of property subject to Casualty Events upon receipt of the  Net Proceeds of such Casualty Event;  (j) Dispositions of other assets or property (including the sale or issuance of Equity Interests  in a Restricted Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) such  Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j)  for a purchase price in excess of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Cash EBITDA  for the Test Period most recently ended on or prior to the date of such Disposition based upon the financial  statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to  Section 5.01(a) or (b), for any transaction or series of related transactions the Borrower or any Restricted  Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents;  provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent  balance sheet of the Borrower provided hereunder or in the footnotes thereto) of the Borrower or such  Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the  Loan Document Obligations, that (1) are assumed by the transferee with respect to the applicable  Disposition or (2) are otherwise cancelled or terminated in connection with the transaction with such  transferee, and for which the Borrower and its Restricted Subsidiaries shall have been validly released by  all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by the Borrower  or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted  Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within  180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any  Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of  such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non- Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the  time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $1,000,000 and (y) 2.5%  of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such  Disposition (measured as of the date such Disposition is made based upon the financial statements most  recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a)  or (b)) (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the  Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received  and without giving effect to subsequent changes in value, shall be deemed to be cash, and (iii) the Net  Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section  2.11(c);  (k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant  to customary buy/sell arrangements between the Joint Venture parties set forth in, Joint Venture agreements  and similar binding arrangements;  (l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any  Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to  the business of the Borrower and the Restricted Subsidiaries and do not exceed 30% of the assets acquired  pursuant to such Permitted Acquisition or other Investment or (B) made to obtain the approval of any  applicable antitrust authority in connection with a Permitted Acquisition;  (m) transfers of condemned property as a result of the exercise of “eminent domain” or other  similar powers to the respective Governmental Authority or agency that has condemned the same (whether  by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar  





 






167  action or that have been subject to a casualty to the respective insurer of such real property as part of an  insurance settlement;  (n) Dispositions of assets that do not constitute Collateral (including Dispositions or issuance  of Equity Interests in, Indebtedness of, other securities issued by, Unrestricted Subsidiaries) for Fair Market  Value not in excess of the greater of (x) $3,000,000 and (y) 10.0% of Consolidated Total Assets for the  Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such  Disposition is made based upon the financial statements most recently delivered (or required to have been  delivered) on or prior to such date pursuant to Section 5.01(a) or (b));  (o) Dispositions in connection with the Transactions or any Tax Restructuring; provided that,  after giving effect to any such Disposition in connection with any Tax Restructuring, the Guarantees of the  Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely  impaired in any material respect;  (p) any Disposition of a Sale Leaseback; provided that, during the Suspension Period, after  giving effect to such Disposition, the Total Net Cash Leverage Ratio would not exceed 4.00:1.00, calculated  on a pro forma basis as of the Test Period most recently ended on or prior to such date of incurrence  (measured as of the date such Disposition is made based upon the financial statements most recently  delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b));   (q) any merger, consolidation, amalgamation, Disposition or conveyance the sole purpose of  which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or  (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;  (r) [reserved];  (s) each Loan Party and each of its Restricted Subsidiaries may surrender or waive contractual  rights and settle or waive contractual or litigation claims in the ordinary course of business or consistent  with past practice;   (t) the unwinding of any Swap Agreement pursuant to its terms;   (u) the nominal issuances of Equity Interests of Foreign Subsidiaries in an aggregate amount  not to exceed 2.0% of all issued and outstanding Equity Interests of such Foreign Subsidiary on a fully- diluted basis; and  (v) Dispositions to effect the formation of any Subsidiary that is a Divided Delaware LLC;  provided that upon formation of such Divided Delaware LLC, the Borrower has complied with Section 5.11  to the extent applicable.  Notwithstanding anything herein to the contrary, in no event shall any Loan Party or any of its  Restricted Subsidiaries contribute, sell, assign, transfer or otherwise dispose of any Permitted Receivables  Facility Assets, including in connection with any factoring transaction, any receivables transaction,  securitization transaction, any facilities or programs or other similar transactions relating to Permitted  Receivables Facility Assets, other than pursuant to clause (g) above and any Permitted Receivables Facility  Assets may not be disposed of and such disposal shall not otherwise be permitted pursuant to any other  clause in this Section 6.05; provided that any bona fide Disposition of any Subsidiary, other minority  investment, business unit or line of business by the Borrower or any Restricted Subsidiary to a third party  (including to any Unrestricted Subsidiary or Joint Venture) and not made to effectuate any Permitted  Receivables Financing shall be permitted under and subject to the terms of any applicable exception to this  





 






168  Section 6.05 notwithstanding that any such Subsidiary, other minority investment, business unit or line of  Business may own Permitted Receivables Financing Assets.  To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any  Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan  Documents, which Liens shall be automatically released upon the consummation of such Disposition; it  being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any  actions deemed appropriate in order to effect the foregoing.  SECTION 6.06 Holdings Covenant.  Holdings will not incur any Indebtedness or Liens or  engage in any material activities or consummate any material transactions (including, without limitation,  any Investments (unless any such Investment will be concurrently contributed by Holdings to the Borrower  or a Loan Party) or Dispositions) and will not conduct, transact or otherwise engage in any material business  or material operations, in each case, other than:   (a) the ownership and/or acquisition of the Equity Interests of the Borrower, including  payment of dividends and other amounts in respect of its Equity Interests,  (b) the performance of obligations under and compliance with its Organizational Documents,  or other Requirement of Law (including the maintenance of its legal existence, including the ability to incur  fees, costs and expenses relating to such maintenance), ordinance, regulation, rule, order, judgment, decree  or permit, including without limitation as a result of or in connection with the activities of the Restricted  Subsidiaries,  (c) repurchases of Indebtedness to the extent permitted hereunder, the making of any loan to  any officers or directors constituting an Investment permitted under Section 6.04, the making of any  Investment in the Borrower or any Restricted Subsidiary that is a Guarantor or, to the extent otherwise not  prohibited under Section 6.04, a Subsidiary thereof,  (d) participating in tax, accounting and other administrative matters related to any Parent  Entity and the Borrower or any of their Subsidiaries,  (e) the entry into, and exercise rights and performance of its obligations under and in  connection with the Loan Documents, and any other Indebtedness of the Borrower and the Restricted  Subsidiaries permitted under Section 6.01,  (f) any public offering of its common stock or any other issuance or registration of its  Qualified Equity Interests for sale or resale (including, for the avoidance of doubt, the making of any  dividend or distribution on account of, or any redemption, retirement, sinking fund or similar payment,  purchase or other acquisition for value of, any shares of any class of Qualified Equity Interests), including  the costs, fees and expenses related thereto,  (g) (1) holding of any cash, Cash Equivalents and other assets received from, or Investments  made by, the Borrower or any Restricted Subsidiary or contributions to the capital of, or proceeds from the  issuance of, Equity Interests of the Parent Entities, in each case, pending prompt application thereof in a  manner permitted by the terms of this Agreement (including by way of Restricted Payments to any Parent  Entity) and (2) the payment of dividends or making of distributions, making of loans and contributions to  the capital of its Subsidiaries and guaranteeing the obligations of its Subsidiaries (other than Indebtedness)  and making Investments expressly permitted to be made by Holdings under this Agreement,  





 






169  (h) incurring fees, costs and expenses relating to overhead and general operating including  professional fees for legal, tax and accounting issues and paying taxes,  (i) providing indemnification for its current and former officers, directors, members of  management, managers, employees and advisors or consultants,  (j) performing of its obligations under the Merger Agreement and the other documents and  agreement related thereto, Investments contemplated by the Transactions and transactions that are otherwise  specifically permitted or expressly contemplated hereunder,  (k) [reserved],  (l) activities reasonably incidental to the consummation of an IPO, including payment of  Public Company Costs,  (m) activities reasonably incidental to the consummation of a Tax Restructuring,  (n) activities incidental to the businesses or activities described in the foregoing clauses, and  (o) merging, amalgamating or consolidating with any other Person, so long as, solely in the  case of a merger, amalgamation or consolidation with a Person that is not a Loan Party, there is no  continuing Event of Default after giving effect to such merger, amalgamation or consolidation and provided  that (i) Holdings shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any  such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been  liquidated (any such Person, the “Successor Holdings”), (A) the Successor Holdings shall be an entity  organized or existing under the laws of the United States, any State thereof or the District of Columbia, (B)  the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and  the other Loan Documents to which Holdings is a party pursuant to a supplement hereto and thereto in form  and substance reasonably satisfactory to the Administrative Agent, (C) each Loan Party other than  Holdings, unless it is the other party to such merger, amalgamation or consolidation, shall have reaffirmed,  pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that  its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor  Holdings’ obligations under this Agreement, (D) the Successor Holdings shall, immediately following such  merger, amalgamation or consolidation, directly or indirectly own all Subsidiaries owned by Holdings  immediately prior to such transaction, (E) Holdings shall have delivered to the Administrative Agent a  certificate of a Responsible Officer stating that such merger, amalgamation or consolidation complies with  this Agreement and (F) Successor Holdings shall have no assets, liabilities, liens or operations other than  those permitted by this Section 6.06; provided further that if the foregoing requirements are satisfied, the  Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and the other  Loan Documents; provided further that Holdings agrees to provide any documentation and other  information about the Successor Holdings as shall have been reasonably requested in writing by any Lender  through the Administrative Agent that such Lender shall have reasonably determined is required by  regulatory authorities under applicable “know your customer” and anti-money laundering rules and  regulations, including Title III of the USA Patriot Act.  SECTION 6.07 Negative Pledge; Subsidiary Distributions.  The Borrower will not, and will  not permit any Restricted Subsidiary to, enter into any agreement, instrument, deed or lease that (x)  prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any  of their respective properties or revenues, whether now owned or hereafter acquired, for the benefit of the  Secured Parties with respect to the Secured Obligations or under the Loan Documents or (y) prohibits or  limits the ability of any Restricted Subsidiary of the Borrower that is not a Loan Party from making  





 






170  Restricted Payments to any Loan Party or from making or repaying intercompany loans to any Loan Party;  provided that the foregoing shall not apply to:  (a) restrictions and conditions imposed by (i) Requirements of Law, (ii) any Loan Document,  (iii) any documentation relating to any Permitted Receivables Financing, (iv) any documentation governing  Incremental Equivalent Debt, (v) any documentation governing Permitted Unsecured Refinancing Debt,  Permitted Equal Priority Refinancing Debt or Permitted Junior Priority Refinancing Debt, (vi) any  documentation governing Indebtedness incurred pursuant to Sections 6.01(a)(vii), 6.01(a)(viii),  6.01(a)(xiii), 6.01(a)(xiv), 6.01(a)(xviii), 6.01(a)(xix), 6.01(a)(xxv), 6.01(a)(xxvi), 6.01(a)(xxvii),  6.01(a)(xxviii) and 6.01(a)(xxix), (viii) any documentation governing any Permitted Refinancing incurred  to refinance any such Indebtedness referenced in clauses (i) through (vi) above; provided that with respect  to Indebtedness referenced in (A) clauses (v) and (vi) above, such restrictions shall be no more restrictive  in any material respect, taken as a whole, than the restrictions and conditions in the Loan Documents, taken  as a whole, or, in the case of other Indebtedness permitted under Section 6.01, such encumbrances and  restrictions contained in any agreement or instrument taken as a whole are not materially less favorable to  the Lenders than the encumbrances and restrictions contained in this Agreement, taken as a whole (as  determined by the Borrower in good faith) and (B) clause (vi) above, such restrictions shall not expand the  scope in any material respect of any such restriction or condition contained in the Indebtedness being  refinanced;  (b) customary restrictions and conditions existing on the Effective Date and any extension,  renewal, amendment, modification or replacement thereof, except to the extent any such amendment,  modification or replacement expands the scope of any such restriction or condition;  (c) restrictions and conditions contained in agreements relating to the Disposition of a  Subsidiary or any assets pending such Disposition; provided that such restrictions and conditions apply  only to the Subsidiary or assets that is or are subject of such Disposition and such Disposition is permitted  hereunder;  (d) customary provisions in leases, subleases, licenses, cross-licenses or sublicenses and other  contracts restricting the assignment thereof and restrictions that include customary provisions restricting  assignment of any agreement entered into in the ordinary course of business or consistent with past practice;  (e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this  Agreement to the extent such restriction applies only to the property securing by such Indebtedness;  (f) any restrictions or conditions set forth in any agreement in effect at any time any Person  becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such  restriction or condition); provided that such agreement was not entered into in contemplation of such Person  becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply  to the Borrower or any Restricted Subsidiary;  (g) restrictions or conditions in any Indebtedness permitted pursuant to Section 6.01 that is  incurred or assumed by Restricted Subsidiaries that are not Loan Parties to the extent such restrictions or  conditions are no more restrictive in any material respect, when taken as a whole, than the restrictions and  conditions in the Loan Documents, when taken as a whole, or, in the case of other Indebtedness permitted  under Section 6.01, such encumbrances and restrictions contained in any agreement or instrument taken as  a whole are not materially less favorable to the Lenders than the encumbrances and restrictions contained  in this Agreement (as determined by the Borrower in good faith);  





 






171  (h) restrictions on cash (or Cash Equivalents) or other deposits imposed by agreements entered  into in the ordinary course of business (or other restrictions on cash or deposits constituting Permitted  Encumbrances);  (i) restrictions set forth on Schedule 6.07 and any extension, renewal, amendment,  modification or replacement thereof, except to the extent any such amendment, modification or replacement  expands the scope of any such restriction or condition;  (j) customary provisions in partnership agreements, limited liability company organizational  governance documents, sale leaseback agreements, Joint Venture agreements and other similar agreements,  in each case, entered into in the ordinary course of business or consistent with past practice;  (k) customary net worth provisions contained in real property leases entered into by  Subsidiaries, so long as the Borrower has determined in good faith that such net worth provisions could not  reasonably be expected to impair the ability of the Borrower and its Subsidiaries to meet their ongoing  obligations;  (l) restrictions arising in any Swap Agreement and/or any agreement relating to any Cash  Management Obligation; and  (m) restrictions or conditions contained in any trading, netting, operating, construction, service,  supply, purchase, sale or other agreement to which the Borrower or any Restricted Subsidiary is a party,  entered into in the ordinary course of business or consistent with past practice; provided that such agreement  prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary  that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and  does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets  or property of another Restricted Subsidiary.  SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness.  (a) The Borrower will not, and will not permit any Restricted Subsidiary to, pay or make,  directly or indirectly, any Restricted Payment, except:  (i) each Restricted Subsidiary may make Restricted Payments to the Borrower or any  Restricted Subsidiary (and, in the case of any such Subsidiary that is not a wholly-owned  Subsidiary, to each other owner of Equity Interests of such Subsidiary ratably based on their relative  ownership interests of the relevant class of Equity Interests);  (ii) to the extent constituting a Restricted Payment, the Borrower may consummate  any transaction permitted by Section 6.03 (other than clause (i) thereof) and Section 6.04 (other  than Section 6.04(m), (n), (q), (t), (u) and (y))  (iii) Restricted Payments made in connection with any Permitted Receivables  Financing;  (iv) Holdings and the Borrower may (or may pay Restricted Payments to permit any  Parent Entity thereof or any Equityholding Vehicle to) redeem, repurchase, retire or otherwise  acquire in whole or in part any Equity Interests of Holdings, the Borrower or any Restricted  Subsidiary or any Equity Interests of any Parent Entity or Equityholding Vehicle, in exchange for  another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from  equity contributions or sales or issuances (other than to Holdings, the Borrower or a Restricted  





 






172  Subsidiary) of new shares of such Equity Interests to the extent contributed to Holdings or the  Borrower (in each case other than Disqualified Equity Interests, “Refunding Equity Interests”)  substantially concurrently with such contribution or sale or issuance; provided that (i) any terms  and provisions material to the interests of the Lenders, when taken as a whole, contained in such  Refunding Equity Interests are at least as advantageous to the Lenders as those contained in the  Equity Interests redeemed thereby and (ii) Holdings, the Borrower, and any Restricted Subsidiary  may pay Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity  Interests not otherwise permitted by Section 6.01) of such Person;  (v) repurchases of Equity Interests in any Parent Entity (or make Restricted Payments  to allow repurchases of Equity Interest in any Parent Entity) deemed to occur upon exercise of  stock options or warrants or other incentive interests if such Equity Interests represent a portion of  the exercise price of such stock options or warrants or other incentive interests;  (vi) the Borrower may redeem, acquire, retire or repurchase its Equity Interests (or any  options, warrants, restricted stock, stock appreciation rights or other equity-linked interests issued  with respect to any of such Equity Interests) or make Restricted Payments to allow any of its Parent  Entities to so redeem, retire, acquire or repurchase their Equity Interests (or any options, warrants,  restricted stock, stock appreciation rights or other equity-linked interests issued with respect to any  of such Equity Interests), in each case, held by current or former officers, managers, consultants,  directors, employees, independent contractors or other service providers (or their respective  Immediate Family Members) of the Borrower or any Parent Entity thereof and the Restricted  Subsidiaries, upon the death, disability, retirement or termination of employment or service of, or  breach of restrictive covenants by, any such Person or otherwise in accordance with any stock  option or stock appreciation rights plan, any management, director and/or employee stock  ownership or incentive plan, stock subscription plan, stock subscription or equity incentive award  agreement, employment termination agreement or any other employment agreements or equity  holders’ agreement or similar agreement; provided that, the aggregate amount of Restricted  Payments permitted by this clause (vi) after the Effective Date, together with the aggregate amount  of loans and advances to Holdings (or any other Parent Entity) previously made pursuant to  Section 6.04(m) in lieu of Restricted Payments permitted by this clause (vi), shall not exceed (x)  during the Suspension Period, $1,000,000 in any fiscal year (and any unused amounts in any fiscal  year shall not be permitted to be carried over to succeeding fiscal years), and (y) after the  Suspension Period has ended, $10,000,000 in any fiscal year (with unused amounts in any fiscal  year being carried over for no more than two succeeding fiscal years), plus all net cash proceeds  obtained from any key-man life insurance policies received during such fiscal year (without giving  effect to the following proviso) plus all proceeds obtained by the Borrower or any Parent Entity  (and contributed to the Borrower) after the Effective Date from the sale of such Equity Interests to  other future, current or former officers, managers, consultants, employees, directors and  independent contractors (or their respective Immediate Family Members) in connection with any  plan or agreement referred to above in this clause (a)(vi);  (vii) the Borrower may make Restricted Payments in cash to Holdings or any other  Parent Entity:  (A) so long as the Borrower is properly treated as a flow-through entity for  U.S. federal income tax purposes, to enable Holdings or such Parent Entity to make tax  distributions to its direct or indirect equity owners to pay their respective tax liabilities  (including estimated payments thereof) attributable to the income of the Borrower and its  subsidiaries in any taxable period; provided that such tax liabilities shall be calculated for  each taxable year by multiplying (I) the excess of each such equity owner’s allocated share  





 






173  of taxable income over taxable losses of the Borrower for such taxable year (or if the  Borrower is a disregarded entity, the excess of taxable income over taxable losses of the  Borrower that would exist if such excess were calculated assuming that the Borrower is a  partnership for U.S. federal income tax purposes), taking into account such losses only to  the extent usable against such income, determined taking into account any step-up  attributable to a direct or indirect member of the Borrower under section 743(b) or 734(b)  of the Code, reduced by any losses, deductions, credits and other attributes of the Borrower  (or if the Borrower is a disregarded entity, such losses, deductions, credits or other  attributes of the Borrower that would exist if the Borrower is a partnership for U.S. federal  income tax purposes) arising from and after the Closing Date to the extent such amounts  can be used to offset such taxable income and have not previously been taken into account  as an offset hereunder, by (II) the highest combined marginal U.S. federal, state and local  tax rate then applicable to a natural person or corporation residing in New York City, New  York or San Francisco, California (taking into account the application of the Medicare  contribution tax, the character of the taxable income in question, and the alternative  minimum tax rules, taking into account the character of income (long-term capital gain,  qualified dividend income, etc.) and determined after giving effect to the maximum  allowable deduction for state and local income taxes for U.S. federal income tax purposes)  for the relevant taxable period; provided further that the amount of any distribution  permitted under this subclause (A) shall be reduced by the amount of any income taxes that  are paid directly by the Borrower and attributable to such equity owner; provided, further,  that to the extent a portion of the net taxable income of the Borrower is attributable to an  Unrestricted Subsidiary, the tax distributions with respect to such portion shall be allowed  only to the extent actual cash is received by the Borrower or its Restricted Subsidiary from  such Unrestricted Subsidiary;  (B) the proceeds of which shall be used by such Parent Entity to pay (1) its  operating expenses incurred in the ordinary course of business and other corporate  overhead costs and expenses (including administrative, legal, accounting, tax reporting and  similar expenses payable to third parties), that are reasonable and customary and incurred  in the ordinary course of business, (2) any reasonable and customary indemnification  claims made by directors, officers, members of management, managers, employees or  consultants of Holdings (or any other Parent Entity) attributable to the ownership or  operations of any Parent Entity, the Borrower and the respective Restricted Subsidiaries,  (3) fees and expenses (x) due and payable by the Borrower or any Restricted Subsidiary  and (y) otherwise permitted to be paid by the Borrower and the Restricted Subsidiaries  under this Agreement and (4) payments that would otherwise be permitted to be paid  directly by the Borrower or the Restricted Subsidiaries pursuant to Section 6.09(iii), (v) or  (x);  (C) the proceeds of which shall be used by Holdings (or any other Parent  Entity) to pay franchise and similar Taxes, and other fees and expenses, required to  maintain its organizational existence;  (D) the proceeds of which will be applied to make any payments permitted by  Section 6.09(vii) and Section 6.09(x);  (E) the proceeds of which shall be used by any Parent Entity to finance any  Investment that would be permitted to be made by the Borrower or any Restricted  Subsidiary pursuant to Section 6.04 other than Section 6.04(m); provided that (1) such  Restricted Payment shall be made substantially concurrently with the closing of such  





 






174  Investment and (2) such Parent Entity shall, immediately following the closing thereof,  cause (x) all property acquired (whether assets or Equity Interests but not including any  loans or advances made pursuant to Section 6.04(b)) to be contributed to the Borrower or  any Restricted Subsidiary (and in no event shall any such contribution increase the  Available Equity Amount) or (y) the Person formed or acquired to merge into or  consolidate or amalgamate with the Borrower or any Restricted Subsidiary to the extent  such merger or consolidation is permitted by Section 6.03) in order to consummate such  Investment, in each case in accordance with the requirements of Sections 5.11 and 5.12;   (F) the proceeds of which shall be used to pay customary salary, bonus,  severance and other benefits payable to current or former directors, officers, members of  management, managers, consultants, independent contractors or employees of Holdings or  any other Parent Entity to the extent such salaries, bonuses and other benefits are  attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;  (G) the proceeds of which shall be used by Holdings (or any other Parent  Entity) to pay (i) fees and expenses related to any successful or unsuccessful equity  issuance or offering or debt issuance, incurrence or offering, disposition or acquisition,  Investment or other transaction permitted by this Agreement and (ii) after the  consummation of an IPO described in clause (a) of the definition thereof or issuance of  public debt securities, Public Company Costs; and  (H) the proceeds of which shall be used for the payment of insurance  premiums to the extent attributable to any Parent Entity, the Borrower and their  subsidiaries;  (viii) in addition to the foregoing Restricted Payments, the Borrower may make  additional Restricted Payments to Holdings, in an aggregate amount, not to exceed the sum of (A)  after the Suspension Period has ended, the Restricted Payment Amount at such time so long as no  Event of Default has occurred and is continuing (or would occur after giving pro forma effect to  such action) (for the avoidance of doubt, no Restricted Payment shall be made in reliance on this  clause (A) during the Suspension Period), plus (B) the Available Amount that is Not Otherwise  Applied as in effect immediately prior to the time of making of such Restricted Payment; provided  that, in the case of this clause (B), (x) no Event of Default has occurred and is continuing (or would  occur after giving pro forma effect to such action) and (y) after giving pro forma effect to such  Restricted Payment on a pro forma basis as of the last day of the Test Period most recently ended  on or prior to such date of such Restricted Payment (measured as of the date such Restricted  Payment is made based upon the financial statements most recently delivered (or required to have  been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)), the Total Net Cash  Leverage Ratio is less than or equal to (I) during the Suspension Period, 4.00:1.00, and (II) after  the Suspension Period has ended, 5.50:1.00, plus (C) the Available Equity Amount that is Not  Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment  (for the avoidance of doubt, no Restricted Payment shall be made in reliance on clause (b) of the  Available Equity Amount during the Suspension Period);   (ix) redemptions in whole or in part of any of its Equity Interests for another class of  its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances  of new Equity Interests (and in no event shall such contribution or issuance so utilized increase the  Available Equity Amount); provided that such new Equity Interests contain terms and provisions  at least as advantageous, taken as a whole, to the Lenders in all respects material to their interests  as those contained in the Equity Interests redeemed thereby;  





 






175  (x) payments made or expected to made in respect of withholding or similar Taxes  payable by any future, present or former employee, director, manager or consultant and any  repurchases of Equity Interests in consideration of such payments including deemed repurchases  in connection with the exercise of stock options and the vesting of restricted stock and restricted  stock units;  (xi) the Borrower may make Restricted Payments to any Parent Entity to enable such  Parent Entity to (A) pay cash in lieu of fractional Equity Interests in connection with any dividend,  split or combination thereof or any Permitted Acquisition (or other similar Investment) and  (B) honor any conversion request by a holder of convertible Indebtedness by delivering or issuing  Equity Interests and making cash payments in lieu of fractional shares in connection with any such  conversion and may make required cash interest payments on convertible Indebtedness in  accordance with its terms;  (xii) following the consummation of an IPO, and after the Suspension Period has ended,  the payment of Restricted Payments to Holdings or any direct Parent Entity of Holdings to fund the  payment of regular dividends on such company’s Equity Interests, in an aggregate amount per  annum not to exceed 6.0% per annum of the aggregate amount of proceeds from such IPO received  by, or contributed to, the Borrower or any Restricted Subsidiary; provided that, on the date of  declaration of any such dividend, after giving effect to such dividend, there is no continuing Event  of Default before or after giving effect thereto (for the avoidance of doubt, Restricted Payments  shall not be made in reliance on this clause (xii) during the Suspension Period);  (xiii) payments made by the Borrower or any Restricted Subsidiary in respect of  withholding or similar taxes payable upon exercise of Equity Interests by any future, present or  former employee, director, officer, manager or consultant (or their respective controlled Affiliates  or Immediate Family Members) and any repurchases of Equity Interests deemed to occur upon  exercise of stock options or warrants if such Equity Interests represent a portion of the exercise  price of such options or warrants or required withholding or similar taxes;  (xiv) [reserved];   (xv) Restricted Payments constituting or otherwise made in connection with or relating  to any Tax Restructuring;  (xvi) the Borrower may make Restricted Payments, the proceeds of which are applied  (A) (i) on the Effective Date, solely to effect the consummation of the Transactions and (ii) on and  after the Effective Date, to satisfy any payment obligations owing under the Merger Agreement  (including in respect of any payments required to be made after the Effective Date in connection  with, or necessary to consummate, the Transactions and the other transactions set forth in the  Merger Agreement) and (B) to payments or distributions to satisfy dissenters’ rights pursuant to or  in connection with an acquisition, merger, consolidation, amalgamation or transfer of assets that is  a Permitted Acquisition or similar Investment, or is otherwise permitted under Section 6.03; and  (xvii) the distribution, by dividend or otherwise, of shares of Equity Interests of, or  Indebtedness owed to Holdings, the Borrower or any Restricted Subsidiary by, Unrestricted  Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash or Cash  Equivalents).  (b) The Borrower will not, nor will it permit any Restricted Subsidiary to, make or pay, directly  or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect  





 






176  of principal of any Subordinated Indebtedness, any Junior Indebtedness or any Unsecured Material  Indebtedness (collectively, “Restricted Junior Debt”), or any payment or other distribution (whether in cash,  securities or other property), including any sinking fund or similar deposit, on account of the purchase,  redemption, retirement, acquisition, cancellation or termination of any such Restricted Junior Debt, in each  case, on or prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:   (i) payment of regularly scheduled interest and principal payments, payments of fees,  expenses and indemnification obligations when due in respect of any Indebtedness, other than  payments in respect of any Restricted Junior Debt prohibited by the subordination provisions  thereof or any applicable subordination agreement or Junior Priority Intercreditor Agreement;  (ii) (1) refinancings or exchanges of Restricted Junior Debt with proceeds of Permitted  Refinancing Indebtedness or other Restricted Junior Debt, in each case, to the extent such  Indebtedness is permitted to be incurred under Section 6.01 and (2) Refinancings of Restricted  Junior Debt assumed in accordance with Section 6.01(a)(vii) in connection with a Permitted  Acquisition or similar Investment permitted under this Agreement;  (iii) (1) the conversion of any Restricted Junior Debt to or payments with Equity  Interests (other than Disqualified Equity Interests) of Holdings, the Borrower or any Parent Entity  (for the avoidance of doubt, no cash payments of Restricted Junior Debt shall be made with cash  proceeds received from the sale or issuance of Equity Interests during the Suspension Period ) and  (2) mandatory redemptions of Disqualified Equity Interests;   (iv) Restricted Debt Payments in an aggregate amount not to exceed the sum of (A) (i)  after the Suspension Period has ended, the Restricted Debt Payment Amount that the Borrower  elects to apply pursuant to this clause (i), plus (ii) after the Suspension Period has ended, an amount  not to exceed the portion, if any, of the Restricted Payment Amount that the Borrower elects to  apply pursuant to this clause (ii), in the case of this clause (A), so long as no Event of Default has  occurred and is continuing (or would occur after giving pro forma effect to such action) (for the  avoidance of doubt, no Restricted Debt Payment may be made in reliance on this clause (A) during  the Suspension Period), plus (B) the Available Amount that is Not Otherwise Applied as in effect  immediately prior to the time of making of such Restricted Debt Payment; provided that, in the  case of this clause (B), (x) no Event of Default has occurred and is continuing (or would occur after  giving pro forma effect to such action) and (y) after giving pro forma effect to such Restricted Debt  Payment on a pro forma basis as of the last day of the Test Period most recently ended on or prior  to such date of such Restricted Debt Payment (measured as of the date such Restricted Debt  Payment is made based upon the financial statements most recently delivered (or required to have  been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)), the Total Net Cash  Leverage Ratio is less than or equal to (I) during the Suspension Period, 4.00:1.00, and (II) after  the Suspension Period has ended, 5.50:1.00, plus (C) the Available Equity Amount that is Not  Otherwise Applied as in effect immediately prior to the time of making of such Restricted Debt  Payment (for the avoidance of doubt, no Restricted Debt Payment shall be made in reliance on  clause (b) of the Available Equity Amount during the Suspension Period);  (v) [reserved];  (vi) Restricted Debt Payments in respect of Restricted Junior Debt incurred pursuant  to Section 6.01(a)(vii) (other than Indebtedness incurred (I) to provide all or any portion of the  funds utilized to consummate the transaction or series of related transactions pursuant to which  such Person became a Restricted Subsidiary or was otherwise acquired by Holdings, the Borrower  or a Restricted Subsidiary or (II) otherwise in connection with or contemplation of such  





 






177  acquisition), so long as such Restricted Debt Payments is made or deposited with a trustee or other  similar representative of the holders of such Restricted Junior Debt contemporaneously with, or  substantially simultaneously with, the closing of the Acquisition Transaction under which such  Restricted Junior Debt is incurred;  (vii) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with  respect to any Indebtedness that is permitted under Section 6.01; and  (viii) payments as part of an applicable high yield discount obligation or AHYDO Catch- Up Payment.  (c) The Borrower will not, nor will it permit any Restricted Subsidiary to, amend or modify  any documentation governing any Restricted Junior Debt, in each case (i) if the effect of such amendment  or modification (when taken as a whole) is materially adverse to the Lenders or (ii) in the case of any  Subordinated Indebtedness or Junior Indebtedness, such amendment or modification is in contravention  with any applicable subordination agreement or Junior Priority Intercreditor Agreement.  Notwithstanding anything herein to the contrary, the foregoing provisions of this Section 6.08 will  not prohibit the payment of any Restricted Payment or the consummation of any irrevocable redemption,  retirement, termination, cancellation, purchase or repurchase, defeasance, or other payment or Restricted  Debt Payment within 60 days after the date of declaration of such Restricted Payment or the giving of  irrevocable notice of such redemption, purchase, defeasance or other payment, as applicable, if at the date  of declaration or the giving of such notice such payment would have complied with the provisions of this  Agreement.  SECTION 6.09 Transactions with Affiliates.  The Borrower will not, nor will it permit any of  its respective Restricted Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or  purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other  transactions with, any of its Affiliates in a transaction in excess of the greater of (x) $2,000,000 and (y) 5.0%  of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to the date of such  transaction (measured as of the date of such transaction based upon the financial statements most recently  delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)),  except:  (i) transactions with Holdings, the Borrower or any Restricted Subsidiary (or any  entity that becomes a Restricted Subsidiary as a result of such transaction);  (ii) on terms substantially as favorable to the Borrower or such Restricted Subsidiary  as would be obtainable by such Person at the time in a comparable arm’s-length transaction with a  Person other than an Affiliate;  (iii) the Transactions, the payment of fees and expenses related to the Transactions and  payments required under the Merger Agreement;  (iv) issuances of Equity Interests of Holdings or the Borrower to the extent not  otherwise prohibited by this Agreement;  (v) (1) employment, consulting, severance and other service or benefit related  arrangements between Holdings, the Borrower and the Restricted Subsidiaries and their respective  officers, directors and employees in the ordinary course of business (including loans and advances  pursuant to Sections 6.04(b) and 6.04(p), salary or guaranteed payments and bonuses) and  





 






178  transactions pursuant to stock option and other equity award plans and employee benefit plans and  similar arrangements in the ordinary course of business or consistent with past practice and (2)  transactions in existence on the Effective Date and set forth on Schedule 6.09 and any amendment,  modification or extension thereof to the extent such amendment, modification or extension, taken  as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders  than the relevant transaction in existence on the Effective Date;  (vi) payments by the Borrower and the Restricted Subsidiaries pursuant to tax sharing  agreements among Holdings (and any other Parent Entity), the Borrower and the Restricted  Subsidiaries on customary terms to the extent attributable to the ownership or operation of the  Borrower and the Restricted Subsidiaries, to the extent payments are permitted by Section 6.08;  (vii) the payment of customary fees and reasonable out-of-pocket costs to, and  indemnities provided on behalf of, directors, officers, consultants and employees of Holdings (or  any other Parent Entity), the Borrower and the Restricted Subsidiaries in the ordinary course of  business to the extent attributable to the ownership or operation of the Borrower and the Restricted  Subsidiaries;  (viii) transactions pursuant to permitted agreements in existence or contemplated on the  Effective Date and set forth on Schedule 6.09 or any amendment thereto to the extent such an  amendment is not adverse to the Lenders in any material respect;  (ix) Restricted Payments permitted under Section 6.08 and loans and advances in lieu  thereof pursuant to Section 6.04(m);  (x) payments by the Borrower and any Restricted Subsidiary (A) to reimburse the  Investors, their Affiliates and any of their respective designees for any out of pocket costs and  expenses incurred, (B) for indemnification and other expenses payable to the Investors, their  Affiliates and other related parties and (C) customary compensation to Affiliates in connection with  financial advisory, financing, underwriting or placement services or in respect of other investment  banking activities and other transaction fees, which payments are approved by the majority of the  Board of Directors or a majority of the disinterested members of the Board of Directors of Holdings  in good faith; provided that the aggregate amount of fees paid pursuant to this clause 6.09(x)(C)  shall not exceed $1,000,000.  (xi) the issuance or transfer of Equity Interests (other than Disqualified Equity  Interests) of Holdings to any Permitted Holder or to any former, current or future director, manager,  officer, employee or consultant (Immediate Family Members or Affiliates of the foregoing) of the  Borrower, any of the Subsidiaries or any direct or indirect parent of any of the foregoing;  (xii) Holdings and its Subsidiaries may undertake or consummate or otherwise be  subject to any Tax Restructuring;  (xiii) transactions in connection with any Permitted Receivables Financing;  (xiv) any transaction in respect of which Holdings or the Borrower delivers to the  Administrative Agent a letter addressed to the Board of Directors of Holdings or the Borrower from  an accounting, appraisal or investment banking firm of nationally recognized standing stating that  such transaction is on terms that are no less favorable to Holdings, the Borrower or the applicable  Restricted Subsidiary than might be obtained at the time in a comparable arm’s length transaction  from a Person who is not an Affiliate;  





 






179  (xv) (A) Guarantees permitted by Section 6.01 or Section 6.04 and (B) Investments  permitted by Section 6.04;   (xvi) transactions with customers, clients, Joint Venture partners, suppliers or  purchasers or sellers of goods or services, in each case in the ordinary course of business and  otherwise in compliance with the terms of this Agreement that are fair to the Borrower and the  Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior  management of the Borrower, or are on terms at least as favorable as might reasonably have been  obtained at such time from an unaffiliated party; and  (xvii) the payment of reasonable out-of-pocket costs and expenses and indemnities to  equity holders of any Parent Entity of Holdings pursuant to any stockholders’ agreement.  SECTION 6.10 Change in Nature of Business.  The Borrower shall not, and shall cause its  Restricted Subsidiaries to not, engage in a line of business that is not substantially the same as those lines  of business conducted by the Borrower and the Restricted Subsidiaries on the Effective Date or any Similar  Business.  SECTION 6.11 Accounting Changes.  The Borrower shall not, and shall cause its Restricted  Subsidiaries to not, change their fiscal year from their fiscal year as in effect on the Effective Date; provided,  however, that the Borrower may, upon written notice to the Administrative Agent, change its fiscal year to  any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Borrower and  the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this  Agreement that are necessary to reflect such change in fiscal year.  SECTION 6.12 Changes to Organizational Documents. The Borrower will not, and will cause  each Restricted Subsidiary to not, amend its Organizational Documents, except where the failure to do so,  individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  SECTION 6.13 Financial Maintenance Covenant.   (a) Commencing with the Test Period ending March 31, 2020, the Borrower shall not  permit the Total Net Leverage Ratio as of the last day of any such Test Period to be greater than the levels  in the table below (this Section 6.13(a), the “Total Leverage Covenant”):  Period Total Net Leverage Ratio  Commencing with the Test Period ending on March 31, 2020  through and including the Test Period ending on June 30, 2020  4.50:1.00  Commencing with the Test Period ending on September 30,  2020 through and including the Test Period ending on  December 31, 2020  4.00:1.00  





 






180  Commencing with the Test Period ending on March 31, 2021  through and including the Test Period ending on September  30, 2021  3.50:1.00  Test Period ending on December 31, 2021 [Not tested]  Commencing with the Test Period ending on March 31, 2022  through and including the Test Period ending on September  30, 2022  9.50:1.00  Test Period ending on December 31, 2022 10.25:1.00  Test Period ending on March 31, 2023 9.75:1.00  Test Period ending on June 30, 2023  7.25:1.00  Test Period ending on September 30, 2023 7.00:1.00  Commencing with the Test Period ending on September  30December 31, 2023 and for each Test Period thereafter  3.00:1.00    (b) Commencing with the Test Period ending March 31, 2020, the Borrower shall not  permit the LTV Ratio as of the last day of any such Test Period to be greater than the levels set forth in the  table below (this Section 6.13(b), the “LTV Covenant”):  Period LTV Ratio  Commencing with the Test Period ending on March 31, 2020  through and including the Test Period ending on June 30, 2020  2.50:1.00  Commencing with the Test Period ending on September 30,  2020 through and including the Test Period ending on  December 31, 2020  2.00:1.00  For the Test Period ending on March 31, 2021 1.50:1.00  





 






181  Commencing with the Test Period ending on June 30, 2021  through and including the Test Period ending on December 31,  2021  1.25:1.00  Commencing with the Test Period ending on March 31, 2022  and for each Test Period thereafter  1.00:1.00    (c) At all times, the Borrower shall not permit the Liquidity of the Borrower and its  Subsidiaries to be less than $30,000,000; provided, that if Liquidity is less than $30,000,000 at any time,  such occurrence shall not be deemed to be a breach or Default or Event of Default with respect to this  Section 6.13(c) so long as (x) the Borrower has delivered notice to the Administrative Agent that Liquidity  is less than $30,000,000 and the Borrower intends to effect a Liquidity Cure Contribution and (y) within  ten (10) Business Days of the date on which Liquidity was less than $30,000,000, the Borrower shall have  received net cash proceeds of any issuance of Qualified Equity Interests to its applicable investors or  received capital contributions in the form of unrestricted cash (so long as such capital contribution is not in  exchange for Disqualified Equity Interests) (any such contribution, a “Liquidity Cure Contribution”) in an  amount not less than the amount necessary to ensure that Liquidity is not less than $30,000,000 (this Section  6.13(c), the “Minimum Liquidity Covenant” and together with the Total Leverage Covenant, Total Cash  Leverage Covenant and the Contract Asset Balance Covenant, the “Financial Maintenance Covenants”).  Notwithstanding anything to the contrary contained in this Section 6.13(c), (i) the aggregate amount  of the Liquidity Cure Contribution (such amount, the “Liquidity Cure Amount”) will be deemed to be an  increase to unrestricted cash and Cash Equivalents owned by the Borrower solely for the purpose of  measuring the Minimum Liquidity Covenant, and the Liquidity Cure Amount shall be disregarded for any  other purpose under this Agreement, (ii) there shall be no pro forma or other reduction of the aggregate  amount of Revolving Loans by the amount of the applicable Liquidity Cure Amount for the period for  which such Liquidity Cure Contribution was made; provided that, any portion of such Liquidity Cure  Amount that is actually applied to repay Revolving Loans shall reduce the Revolving Exposure for future  periods for which Liquidity is calculated, (iii) there shall be no more than one Liquidity Cure Contribution  made in any fiscal quarter, and in each four consecutive fiscal quarter period of the Borrower there shall be  no more than two fiscal quarters in which a Liquidity Cure Contribution is made, (iv) during the term of  this Agreement, no more than five Liquidity Cure Contributions may be made and (v) for purposes of this  Section 6.13, the Liquidity Cure Amount shall be no greater than the amount required for purposes of  complying with the Minimum Liquidity Covenant.  Notwithstanding any other provision in this Agreement  to the contrary, during any Test Period in which any Liquidity Cure Amount is included in the calculation  of unrestricted cash and Cash Equivalents as a result of any Liquidity Cure Contribution, the Liquidity Cure  Amount received pursuant to such Liquidity Cure Contribution shall be (A) counted solely as an increase  to unrestricted cash and Cash Equivalents for the purpose of determining compliance with the Minimum  Liquidity Covenant and (B) disregarded for purposes of determining the Available Equity Amount, any  financial ratio-based conditions or provisions, Applicable Rate or any available basket under Article VI of  this Agreement.  No Revolving Lender, Swingline Lender or Issuing Bank shall make any Revolving Loan  or Swingline Loan or to issue any Letter of Credit from and after the date that Liquidity is less than the  minimum amount required at such time unless and until the Liquidity Cure Amount is actually received by  the Borrower.  





 






182  ARTICLE VII    EVENTS OF DEFAULT  SECTION 7.01 Events of Default.  If any of the following events (any such event, an “Event  of Default”) shall occur:  (a) The Borrower shall fail to pay any principal of any Loan or any reimbursement obligations  in respect of Letters of Credit when and as the same shall become due and payable hereunder, whether at  the due date thereof or at a date fixed for prepayment thereof or otherwise;  (b) any Loan Party shall fail to pay any interest on any Loan or any fee or any other amount  (other than an amount referred to in clause (a) of this Section) payable under any Loan Document, when  and as the same shall become due and payable hereunder, and such failure shall continue unremedied (i)  with respect to the payment of interest, for a period of five Business Days and (ii) with respect to the  payment of any fee or other amount, for a period of ten Business Days;  (c) any representation or warranty made or deemed made by or on behalf of Holdings, the  Borrower or any Restricted Subsidiary in or in connection with any Loan Document or any amendment or  modification thereof or waiver thereunder, or in any report, certificate, financial statement or other  document furnished pursuant to or in connection with any Loan Document or any amendment or  modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when  made or deemed made;  (d) Holdings, the Borrower or any Restricted Subsidiary shall fail to observe or perform any  covenant, condition or agreement contained in Section 5.02(a), 5.04 (with respect to the existence of the  Borrower) or in Article VI; it being understood and agreed that any Event of Default under Section 6.13 (a  “Financial Maintenance Covenant Event of Default”) is subject to cure as provided in Section 6.13(c) and  Section 7.02 and, in the case of Section 6.13(a) and Section 6.13(b) so long as the Borrower has a right to  exercise the Cure Right with respect to the applicable quarter, a Financial Maintenance Covenant Event of  Default shall not occur until the expiration of the fifteenth Business Day subsequent to the date on which  the financial statements with respect to the applicable fiscal quarter (or the fiscal year ended on the last day  of such fiscal quarter) are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as  applicable, or, in the case of Section 6.13(c), so long as the Borrower has exercised its cure rights under  Section 6.13(c) with respect to the applicable period therein, and then only to the extent that, in the  applicable cases, the cure amounts under Section 6.13(c) or the Cure Amount (in an amount sufficient to  comply with the applicable Financial Maintenance Covenant for such period or fiscal quarter as applicable)  has not been received on or prior to such date;  (e) any Loan Party shall fail to observe or perform any covenant, condition or agreement  contained in any Loan Document (other than those specified in clause (a), (b) or (d) of this Section), and  such failure shall continue unremedied for a period of 30 days after written notice thereof is received by the  Borrower from the Administrative Agent;  (f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of  principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the  same shall become due and payable (after giving effect to any applicable grace period);  (g) any event or condition occurs that results in any Material Indebtedness becoming due prior  to its scheduled maturity or that enables or permits (with all applicable grace periods having expired) the  holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any  





 






183  Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance  thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (i) secured  Indebtedness that becomes due as a result of the sale, transfer or other Disposition (including as a result of  a Casualty Event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or  other disposition is not prohibited under this Agreement), (ii) termination events or similar events occurring  under any Swap Agreement that constitutes Material Indebtedness (it being understood that clause (f) of  this Section will apply to any failure to make any payment required as a result of any such termination or  similar event), (iii) Indebtedness permitted to exist or be incurred under the terms of this Agreement that is  required to be repurchased, prepaid, defeased, redeemed or satisfied (or as to which an offer to repurchase,  prepay defease, redeem or satisfy is required to be made) in connection with any asset sale event, casualty  or condemnation event, change of control, excess cash flow or other customary provision in such  Indebtedness giving rise to such requirement to so offer or repurchase, prepay, defease, redeem or satisfy  in the absence of any default thereunder or (iv) Indebtedness that is convertible in Equity Interests and  converts to Equity Interests in accordance with its terms; provided that, in the case of Section 7.01(f) and  this Section 7.01(g), such default has not been waived by the holders of such Indebtedness;  (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed  seeking (i) liquidation, court protection, reorganization or other relief in respect of Holdings, the Borrower  or any Significant Subsidiary or its debts, or of a material part of its assets, under any Federal, state or  foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment  of a receiver, trustee, custodian, examiner, sequestrator, conservator or similar official for Holdings, the  Borrower or any Significant Subsidiary or for a material part of its assets, and, in any such case, such  proceeding or petition shall continue undismissed or unstayed for 60 consecutive days or an order or decree  approving or ordering any of the foregoing shall be entered;  (i) Holdings, the Borrower or any Significant Subsidiary shall (i) voluntarily commence any  proceeding or file any petition seeking liquidation, court protection, reorganization or other relief under any  Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,  (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or  petition described in clause (h) of this Section, (iii) apply for or consent to the appointment of a receiver,  trustee, examiner, custodian, sequestrator, conservator or similar official for Holdings, the Borrower or any  Significant Subsidiary or for a material part of its assets, (iv) file an answer admitting the material  allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the  benefit of creditors;  (j) one or more enforceable judgments for the payment of money in an aggregate amount in  excess of $10,000,000 (to the extent not covered by insurance as to which the insurer has been notified of  such judgment or order and has not denied its obligation) shall be rendered against Holdings, the Borrower,  any Restricted Subsidiary or any combination thereof and the same shall remain unpaid, undischarged,  unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive days;  (k) (i) an ERISA Event occurs that has resulted or could reasonably be expected to result,  individually or together with all other ERISA Events that have occurred or are reasonably expected to occur,  in liability of Holdings, the Borrower or any Restricted Subsidiary in an aggregate amount that has resulted,  or could reasonably be expected to result in, a Material Adverse Effect, (ii) any of Holdings, the Borrower  or any Restricted Subsidiary or any ERISA Affiliate fails to pay when due, after the expiration of any  applicable grace period, any payment with respect to a Multiemployer Plan, including with respect to any  Withdrawal Liability under Section 4201 of ERISA, in an aggregate amount that could reasonably be  expected to result in a Material Adverse Effect, or (iii) any of Holdings, Borrower or Restricted Subsidiary  incurs a liability under a Foreign Pension Plan that has resulted, or could reasonably be expected to result,  





 






184  individually or together with any other liability under any Foreign Pension Plan or ERISA Event, in a  Material Adverse Effect;   (l) any Lien purported to be created under any Security Document shall cease to be, or shall  be asserted by any Loan Party in writing not to be, a valid and perfected Lien on any material portion of the  Collateral, except (i) as a result of the sale or other disposition of the applicable Collateral to a Person that  is not a Loan Party in a transaction permitted under the Loan Documents, (ii) as a result of the  Administrative Agent’s failure to (A) maintain possession of any stock certificates, promissory notes or  other instruments delivered to it under the Security Documents or (B) file Uniform Commercial Code  continuation statements or (iii) as to Collateral consisting of real property, to the extent that such losses are  covered by a lender’s title insurance policy and such insurer has not denied coverage;  (m) (i) this Agreement, any Security Document or any Guarantee of the Secured Obligations  shall for any reason not be (or asserted by any Loan Party in writing not to be) a legal, valid and binding  obligation of any Loan Party thereto other than as expressly permitted hereunder or thereunder; or (ii) any  subordination provision in respect of any Material Indebtedness shall for any reason not be (or asserted by  any Loan Party in writing not to be) a legal, valid and binding obligation of any Loan Party thereto other  than as expressly permitted hereunder or thereunder; or  (n) a Change in Control shall occur;  then, and in every such event (other than an event with respect to the Borrower described in clause (h) or  (i) of this Section), and at any time thereafter during the continuance of such event, the Administrative  Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any or all of  the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the  Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable  in whole (or in part, (but ratably as among Classes of Loans and the Loans of each Class at the time  outstanding) in which case any principal not so declared to be due and payable may thereafter be declared  to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together  with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall  become due and payable immediately, and (iii) require the deposit of cash collateral in respect of LC  Exposure as provided in Section 2.05(j), in each case without presentment, demand, protest or other notice  of any kind, all of which are hereby waived by Holdings, the Borrower and each other Loan Party; and in  the case of any event with respect to the Borrower described in clause (h) or (i) of this Section, the  Commitments shall automatically terminate and the principal of the Loans then outstanding, together with  accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall  immediately and automatically become due and payable and the deposit of such cash collateral in respect  of LC Exposure shall immediately and automatically become due, in each case without presentment,  demand, protest or other notice of any kind, all of which are hereby waived by Holdings, the Borrower and  each other Loan Party.  SECTION 7.02 Right to Cure.  Notwithstanding anything to the contrary contained in  Section 7.01, in the event that the Borrower fails to comply with the requirements of the Financial  Maintenance Covenants described in Section 6.13(a) and Section 6.13(b), at any time from the first day of  such applicable quarter until the expiration of the fifteenth Business Day subsequent to the date on which  the financial statements with respect to such fiscal quarter (or the fiscal year ended on the last day of such  fiscal quarter) are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, the  Borrower (or any Parent Entity thereof) shall have the right to issue Qualified Equity Interests or other  Equity Interests reasonably satisfactory to the Administrative Agent (but excluding Disqualified Equity  Interests) (each such issuance taken pursuant and in accordance with this Section 7.02, a “Specified Equity  Issuance”) for cash or otherwise receive cash contributions to (or in the case of any other Parent Entity,  





 






185  receive equity interests in the Borrower for its cash contributions to) the Equity Interests (other than  Disqualified Equity Interests) of the Borrower as cash common equity or other Qualified Equity Interests  or other Equity Interests reasonably satisfactory to the Administrative Agent, in each case, which are  contributed to the Borrower in the form of cash (collectively, the “Cure Right”), and upon the receipt by  the Borrower of the Net Proceeds of such issuance that are Not Otherwise Applied (the “Cure Amount”)  pursuant to the exercise by the Borrower of such Cure Right, the Financial Maintenance Covenant shall be  recalculated giving pro form effect to the following pro forma adjustment:  (a) (i) Consolidated EBITDA and/or Consolidated Cash EBITDA shall be increased with  respect to such applicable fiscal quarter with respect to which such Cure Amount is received by the  Borrower and any Test Period that includes such fiscal quarter, solely for the purpose of measuring the  applicable Financial Maintenance Covenant(s) and not for any other purpose under this Agreement, by an  amount equal to the Cure Amount and (ii) with respect to the LTV Covenant, Consolidated Total Net Debt  shall be reduced by the portion of the Cure Amount that is actually applied to prepay such Indebtedness;  (b) if, after giving effect to the foregoing recalculation, the Borrower and its Restricted  Subsidiaries shall then be in compliance with the applicable Financial Maintenance Covenant(s), the  Borrower and its Restricted Subsidiaries shall be deemed to have satisfied the requirements of the applicable  Financial Maintenance Covenant(s) as of the relevant date of determination with the same effect as though  there had been no failure to comply therewith at such date, and the applicable breach or default of the  applicable Financial Maintenance Covenant(s) that had occurred shall be deemed cured for the purposes of  this Agreement;  (c) upon the Administrative Agent’s receipt of a written notice from the Borrower that the  Borrower intends to exercise the Cure Right (a “Notice of Intent to Cure”), until the fifteenth Business Day  following the date on which financial statements for the fiscal quarter to which such Notice of Intent to  Cure relates are required to be delivered pursuant to Section 5.01(a) or (b)(i), as applicable, neither the  Administrative Agent (nor any sub-agent therefor) nor any Lender shall exercise any right to accelerate the  Loans or terminate the Revolving Commitments, and none of the Administrative Agent (nor any sub-agent  therefor) nor any Lender or Secured Party shall exercise any right to foreclose on or take possession of the  Collateral or any other right or remedy under the Loan Documents solely on the basis of the relevant failure  to comply with Section 6.13;  (d) there shall be no pro forma or other reduction of the amount of Consolidated Total Net  Debt (by netting or otherwise) by the amount of the applicable Cure Amount for purposes of determining  compliance with Section 6.13(a) in the fiscal quarter in respect of which the Cure Right was exercised;  provided that, any portion of such Cure Amount that is actually applied to repay Indebtedness or “netted”  against such Indebtedness shall reduce Consolidated Total Net Debt in future Test Periods which include  such fiscal quarter;  (e) notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter  period of the Borrower there shall be no more than two fiscal quarters in which the Cure Right is exercised,  (ii) during the term of this Agreement, the Cure Right shall not be exercised more than five times and  (iii) for purposes of this Section 7.02, the Cure Amount shall be no greater than the amount required for  purposes of complying with the applicable Financial Maintenance Covenant(s).  Notwithstanding any other  provision in this Agreement to the contrary, during any Test Period in which any Cure Amount is included  in the calculation of Consolidated EBITDA and/or Consolidated Cash EBITDA as a result of any exercise  of the Cure Right, the Cure Amount received pursuant to any exercise of the Cure Right shall be (A) counted  solely as an increase to Consolidated EBITDA and/or Consolidated Cash EBITDA for the purpose of  determining compliance with the applicable Financial Maintenance Covenant(s) and (B) disregarded for  





 






186  purposes of determining the Available Equity Amount, any financial ratio-based conditions or provisions,  Applicable Rate or any available basket under Article VI of this Agreement; and  (f) no Revolving Lender, Swingline Lender or Issuing Bank shall make any Revolving Loan  or Swingline Loan or to issue any Letter of Credit from and after such time as the Administrative Agent  has received the Notice of Intent to Cure unless and until the Cure Amount is actually received by the  Borrower.  SECTION 7.03 Application of Proceeds.  After the exercise of remedies provided for in  Section 7.01, any amounts received on account of the Secured Obligations shall be applied by the  Administrative Agent in accordance with Section 4.02 of the Collateral Agreement and/or the similar  provisions in the other Security Documents.  Notwithstanding the foregoing, Excluded Swap Obligations  with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets,  but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the  allocation to Secured Obligations otherwise set forth in Section 4.02 of the Collateral Agreement and/or the  similar provisions in the other Security Documents.  ARTICLE VIII    THE ADMINISTRATIVE AGENT  Each of the Lenders and the Issuing Banks hereby irrevocably appoints Owl Rock Capital  Corporation to serve as Administrative Agent and Collateral Agent under the Loan Documents, and  authorizes the Administrative Agent and Collateral Agent to execute, deliver and administer the Loan  Documents and to take such actions and to exercise such powers as are delegated to the Administrative  Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as  are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the  Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the  Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the  same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits  from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage  in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if  such Person were not the Administrative Agent hereunder and without any duty to account therefor to the  Lenders or the Issuing Banks.  The Administrative Agent shall not have any duties or obligations except those expressly set forth  in the Loan Documents.  Without limiting the generality of the foregoing, (a) the Administrative Agent  shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred  and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or  to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the  Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required  Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances  as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take  any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any  Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the  Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose,  any information relating to Holdings, the Borrower, any other Subsidiary or any other Affiliate of any of  the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of  





 






187  its Affiliates in any capacity.  The Administrative Agent shall not be liable for any action taken or not taken  by it with the consent or at the request of the Required Lenders (or such other number or percentage of the  Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary,  under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful  misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction  by a final and nonappealable judgment).  The Administrative Agent shall be deemed not to have knowledge  of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the  Borrower, a Lender or an Issuing Bank and the Administrative Agent shall not be responsible for or have  any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection  with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder  or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other  terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity,  enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or  document, (v) the existence, value, sufficiency or collectability of any Collateral or creation, perfection or  priority of any Lien purported to be created by the Security Documents or (vi) the satisfaction of any  condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items  expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly  refers to the matters described therein being acceptable or satisfactory to the Administrative Agent.  The  Administrative Agent shall not be responsible or liable to the Lenders for any failure to monitor or maintain  any portion of the Collateral.  Notwithstanding anything herein to the contrary, the Administrative Agent  shall not have any liability arising from any confirmation or determination of (x) the Revolving Exposure  or the component amounts thereof, (y) the Effective Yield or (z) the terms and conditions of any  Intercreditor Agreement.  The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon  any notice, request, certificate, consent, statement, instrument, document or other writing (including any  electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine  and to have been signed, sent or otherwise authenticated by the proper Person (including, if applicable, a  Responsible Officer or Financial Officer of such Person).  The Administrative Agent also may rely, and  shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed  by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer  of such Person), and may act upon any such statement prior to receipt of written confirmation thereof.  In  determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension,  renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender  or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such  Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from  such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit.  The  Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent  accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it  in accordance with the advice of any such counsel, accountants or experts.  The Administrative Agent may perform any of and all its duties and exercise its rights and powers  hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the  Administrative Agent.  The Administrative Agent and any such sub-agent may perform any of and all their  duties and exercise their rights and powers through their respective Related Parties.  The exculpatory  provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative  Agent and any such sub-agent, and shall apply to their respective activities in connection with the  syndication of the credit facilities provided for herein as well as activities as Administrative Agent.  The  Administrative Agent shall not be responsible for the negligence or misconduct of any subagents except to  the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the  Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.  





 






188  The Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and  the Borrower.  If the Administrative Agent becomes a Defaulting Lender or is an affiliate of a Defaulting  Lender, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of  the Borrower or the Required Lenders, in each case, upon 30 days’ notice.  Upon receipt of any such notice  of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent  (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint  a successor, which shall be a commercial bank or trust company with an office in the United States, or an  Affiliate of any such bank with an office in the United States.  If no such successor shall have been so  appointed by the Required Lenders and shall have accepted such appointment within 30 days after the  retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may  (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor  Administrative Agent meeting the qualifications above (the date upon which the retiring Administrative  Agent is replaced, the “Resignation Effective Date”).  If the Person serving as Administrative Agent is a Defaulting Lender or is an Affiliate of a  Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law,  by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of  the Borrower, appoint a successor.  If no such successor shall have been so appointed by the Required  Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then  such removal shall nonetheless become effective in accordance with such notice on the Removal Effective  Date.  With effect from the Resignation Effective Date or the Removal Effective Date (as applicable)  (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations  hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held  by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or  removed Administrative Agent shall continue to hold such collateral security until such time as a successor  Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and  (2) except for any indemnity payments or other amounts then owed to the retiring or removed  Administrative Agent, all payments, communications and determinations provided to be made by, to or  through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if  any, as the Required Lenders or the retiring Administrative Agent appoint a successor Administrative Agent  as provided for above.  Upon the acceptance of a successor’s appointment as Administrative Agent  hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and  duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or  other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date  or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be  discharged from all of its duties and obligations hereunder and under the other Loan Documents as set forth  in this Section.  The fees payable by the Borrower to a successor Administrative Agent shall be the same  as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After  the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan  Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such  retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of  any actions taken or omitted to be taken by any of them (i) while the retiring or removed Administrative  Agent was acting as Administrative Agent or (ii) after such resignation or removal for as long as any of  them continues to act in any capacity hereunder or under the other Loan Documents, including (a) acting  as Collateral Agent or otherwise holding any collateral security on behalf of any of the Lenders, (b) in  respect of any actions taken in connection with transferring the agency to any successor Administrative  Agent and (c) in respect of the matters referred to under clause (1) above.  Notwithstanding anything to the  contrary herein, no Disqualified Lender may be appointed as a successor Administrative Agent without the  consent of the Borrower.  





 






189  Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance  upon the Administrative Agent, any Joint Bookrunner, any Joint Lead Arranger or any other Lender or any  Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and  information as it has deemed appropriate, made its own credit analysis and decision to enter into this  Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the  Administrative Agent, any Joint Bookrunner, any Joint Lead Arranger or any other Lender or any Issuing  Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information  as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking  action under or based upon this Agreement, any other Loan Document or any related agreement or any  document furnished hereunder or thereunder.  Each Lender, by delivering its signature page to this Agreement and funding its Loans on the  Effective Date, or delivering its signature page to an Assignment and Assumption or Incremental Facility  Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged  receipt of, and consented to and approved, each Loan Document and each other document required to be  delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective  Date.  Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08  or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party  shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the  Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan  Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in  accordance with the terms thereof.  In the event of a foreclosure by the Administrative Agent on any of the  Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender  may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and  the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or  Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in  writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase  price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan  Document Obligations as a credit on account of the purchase price for any collateral payable by the  Administrative Agent on behalf of the Secured Parties at such sale or other disposition.  Each Secured Party,  whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the  Guarantees of the Secured Obligations, to have agreed to the provisions of this Article, Section 9.15 and  Section 9.17.  In furtherance of the foregoing and not in limitation thereof, no Swap Agreement or Cash  Management Services the obligations under or in respect of which constitute Secured Obligations will  create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection  with the management or release of any Collateral or of the obligations of any Loan Party under any Loan  Document.  By accepting the benefits of the Collateral, each Secured Party that is a party to any such Swap  Agreement or a provider of such Cash Management Services shall be deemed to have appointed the  Administrative Agent and the Collateral Agent to serve as administrative agent and collateral agent under  the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject  to the limitations set forth in this paragraph.  Each of the Lenders, Issuing Banks and other Secured Parties irrevocably authorizes and directs  the Administrative Agent and the Collateral Agent to, and the Administrative Agent and Collateral Agent,  as applicable, shall (a) release and terminate, or to confirm or evidence any automatic release and  termination of, any Guarantees and Liens created under the Loan Documents as provided in Section 9.15  or in any other Security Document and (b) subordinate, at the request of the Borrower, any Lien on any  





 






190  property granted to or held by the Collateral Agent under any Security Document to the holder of any Lien  on such property that is permitted by Section 6.02(iv) or Section 6.02(xxii).  In case of the pendency of any proceeding with respect to any Loan Party under any federal, state  or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative  Agent (irrespective of whether the principal of any Loan or any LC Disbursement shall then be due and  payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative  Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated)  by intervention in such proceeding or otherwise:  (a) to file and prove a claim for the whole amount of the principal and interest owing and  unpaid in respect of the Loans, LC Exposure and all other Secured Obligations that are owing and unpaid  and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders,  the Issuing Banks and the Administrative Agent (including any claim under Section 2.12, Section 2.13,  Section 2.15, Section 2.16, Section 2.17 and Section 9.03) allowed in such judicial proceeding; and  (b) to collect and receive any monies or other property payable or deliverable on any such  claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make  such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to  the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay  to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the  Loan Documents (including under Section 9.03).  Notwithstanding anything herein to the contrary, neither any Joint Bookrunner nor any Person  named on the cover page of this Agreement as a Joint Lead Arranger, Joint Bookrunner, Documentation  Agent or a Syndication Agent shall have any duties or obligations under this Agreement or any other Loan  Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall  have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named  as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims,  damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising  prior to, on or after the effective date of any Loan Document.  To the extent required by any applicable Requirements of Law, the Administrative Agent may  withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax.   Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify the  Administrative Agent against, and shall make payable in respect thereof within 30 days after demand  therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees,  charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the  Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the  Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for  any reason (including, without limitation, because the appropriate form was not delivered or not properly  executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance  that rendered the exemption from, or reduction of withholding tax ineffective, or because such Lender’s  failure to comply with the provisions of Section 9.04 relating to the maintenance of a Participant Register),  but in each case only to the extent that any Loan Party has not already indemnified the Administrative  Agent for such amounts and without limiting the obligation of the Loan Parties to do so.  A certificate as to  the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and  





 






191  apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan  Document against any amount due the Administrative Agent under this paragraph.  The agreements in this  paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of  rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other  obligations under any Loan Document.  Each Lender and other Secured Party hereby appoints the Administrative Agent and Collateral  Agent to act as its agent under and in connection with the relevant Security Documents and the Intercreditor  Agreements.  All provisions of this Article VIII applicable to the Administrative Agent shall apply to the  Collateral Agent and the Collateral Agent shall be entitled to all the benefits and indemnities applicable to  the Administrative Agent under this Agreement.  ARTICLE IX    MISCELLANEOUS  SECTION 9.01 Notices.  Except in the case of notices and other communications expressly  permitted to be given by telephone, all notices and other communications provided for herein shall be in  writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail  or sent by fax, e-mail or other electronic transmission, as follows:  (a) If to Holdings or the Borrower, to, Norvax, LLC, 214 West Huron Street, Chicago, IL  60654, Attention: General Counsel, Email: BBurd@gohealth.com, with copies to, which such copies shall  not constitute notice, (i) Centerbridge Partners, L.P., 375 Park Avenue, 12th Floor, New York, NY 10152,  Attention: Heather Lamberton, Email: hlamberton@centerbridge.com or legalnotices@centerbridge.com  and Simpson Thacher & Bartlett, LLP, 425 Lexington Avenue, Floor 26, New York, NY 10017, Attention:  Brian M. Steinhardt, Email: bsteinhardt@stblaw.com;  (b) If to the Administrative Agent, Owl Rock Capital Corporation, 399 Park Avenue, 38th  Floor, New York, NY 10022, Attention: Bryan Cole, Email: accounting@owlrock.com and  adminagent@owlrock.com, with a copy to, which such copy shall not constitute notice, Latham & Watkins  LLP, 355 South Grand Avenue, Suite 100, Los Angeles, CA 90071, Attention: Josh Holt, Email:  josh.holt@lw.com;  (c) if to any Issuing Bank, to it at its address (or fax number or email address) most recently  specified by it in a notice delivered to the Administrative Agent and the Borrower (or, in the absence of any  such notice, to the address (or fax number or email address) set forth in the Administrative Questionnaire  of the Lender that is serving as such Issuing Bank or is an Affiliate thereof);  (d) if to the Swingline Lender, to it at its address (or fax number or email address) most recently  specified by it in a notice delivered to the Administrative Agent and the Borrower (or, in the absence of any  such notice, to the address (or fax number or email address) set forth in the Administrative Questionnaire  of the Lender that is serving as the Swingline Lender or is an Affiliate thereof); and  (e) if to any other Lender, to it at its address (or fax number or email address) set forth in its  Administrative Questionnaire.  Notices and other communications sent by hand or overnight courier service, or mailed by certified  or registered mail, shall be deemed to have been given when received; notices and other communications  





 






192  sent by fax or other electronic transmission shall be deemed to have been given when sent (except that, if  not given during normal business hours for the recipient, shall be deemed to have been given at the opening  of business on the next Business Day for the recipient).  Holdings and the Borrower may change their address, email or facsimile number for notices and  other communications hereunder by notice to the Administrative Agent, the Administrative Agent may  change its address, email or facsimile number for notices and other communications hereunder by notice to  Holdings and the Borrower and the Lenders may change their address, email or facsimile number for notices  and other communications hereunder by notice to the Administrative Agent.  Notices and other  communications to the Lenders and the Issuing Banks hereunder may also be delivered or furnished by  electronic transmission (including email and Internet or intranet websites) pursuant to procedures  reasonably approved by the Administrative Agent; provided that the foregoing shall not apply to notices to  any Lender or Issuing Bank pursuant to Article II if such Lender or Issuing Bank, as applicable, has notified  the Administrative Agent that it is incapable of receiving notices under such Article by electronic  transmission.  SECTION 9.02 Waivers; Amendments.  (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in  exercising any right or power under any Loan Document shall operate as a waiver thereof, nor shall any  single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to  enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other  right or power.  The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders  hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or  remedies that they would otherwise have.  No waiver of any provision of any Loan Document or consent  to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be  permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the  specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the  making of a Loan or the issuance, amendment, renewal or extension of a Letter of Credit shall not be  construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any  Issuing Bank may have had notice or knowledge of such Default at the time.  No notice or demand on the  Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other  circumstances.  (b) Except as otherwise set forth in this Agreement, including as provided in Section 2.20 with  respect to any Incremental Facilities and Section 2.24 with respect to any Loan Modification Agreement,  neither any Loan Document nor any provision thereof may be waived, amended or modified except, in the  case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the  Borrower and the Required Lenders (with a copy to the Administrative Agent) or, in the case of any other  Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative  Agent and the Loan Party or Loan Parties that are party thereto, in each case with the consent of the Required  Lenders, provided that no such agreement shall:  (i) without the written consent of each Lender directly and adversely affected thereby:  (A) increase the Commitment of any Lender (it being understood that a waiver  of any condition precedent set forth in Section 4.02 or the waiver of any Default, Event of  Default, mandatory prepayment or mandatory reduction of the Commitments shall not  constitute an extension or increase of any Commitment of any Lender),  





 






193  (B) reduce or forgive any portion of the principal amount of any Loan or LC  Disbursement (it being understood that a waiver of any Default, Event of Default,  mandatory prepayment or mandatory reduction of the Commitments shall not constitute a  reduction in principal) or reduce the rate of interest thereon or forgive any interest thereon,  or reduce or forgive any fees payable hereunder (it being understood that any change to the  definition of any ratio used in the calculation of the interest rate or fees therein or in the  component definitions thereof shall not constitute a reduction or forgiveness of interest or  fees), provided that only the consent of the Required Lenders shall be necessary to waive  any obligation of the Borrower to pay default interest pursuant to Section 2.13(d),   (C) postpone the final maturity date of any Loan (it being understood that a  waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of  the Commitments shall not constitute a postponement of any maturity date), or the date of  any scheduled amortization payment of the principal amount of any Loan under  Section 2.10 or the applicable Incremental Facility Amendment, or the reimbursement date  with respect to any LC Disbursement, or any date for the payment of any interest or fees  payable hereunder, or postpone the scheduled date of expiration of any Commitment;  (D) waive, amend or modify (i) Section 7.03 or (ii) Section 4.02 of the  Collateral Agreement in a manner that would by its terms alter the order of application of  proceeds; or  (E) waive, amend or modify any provision of Section 2.11(e), Section 2.11(f),  Section 2.11(g) or Section 2.18 in any manner that would alter the pro rata sharing of  payments or other amounts required thereby,  provided that, any amendment, modification or waiver contemplated in clause (i) above  shall only require the consent of the Lenders directly and adversely affected thereby and not the  Required Lenders or any other Majority in Interest of Lenders of any Class of Loans or Commitments,   (ii) reduce the percentages set forth in the definition of “Required Lenders” or  consent to the assignment or transfer by the Borrower of its rights and obligations under any Loan  Document to which it is a party (except as permitted by Section 6.03), in each case, without the  written consent of each Lender,  (iii) reduce the percentages specified in the definition of “Required Revolving  Lenders” or in the definition of “Majority in Interest” without the written consent of each Revolving  Lender or each Lender of the applicable Class,   (iv) release all or substantially all the value of the Guarantees under the Guarantee  Agreement (except as expressly provided in the Loan Documents), without the written consent of  each Lender,  (v) release all or substantially all the Collateral securing the Secured Obligations  pursuant to the Security Documents, (except as expressly provided in the Loan Documents) without  the written consent of each Lender,   (vi) amend, waive or otherwise modify this Section 9.02, without the written consent  of each Lender,  





 






194  (vii) amend, waive or otherwise modify any term or provision to subordinate (x) the  Lien securing the Secured Obligations to any other Lien securing any other Indebtedness or (y) any  of the Secured Obligations in right of payment (including pursuant to any “waterfall” provision) to  any other Indebtedness, in each case, without the written consent of each Lender directly and  adversely affected thereby; provided that only those Lenders that have not been provided a  reasonable opportunity to receive the most favorable treatment under or in connection with an  amendment, waiver, supplement or other agreement described in this clause (vii) (other than the  right to receive customary administrative agency and other similar fees) that is provided to any  other Person, including the opportunity to participate on a pro rata basis on the same terms in any  new loans or other Indebtedness permitted to be issued as a result of such amendment, waiver,  modification or other agreement, shall be deemed to be directly and adversely affected by such  amendment, waiver or modification, and  (viii) amend, modify or otherwise affect the rights or duties of the Administrative  Agent or any Issuing Bank or the Swingline Lender without the prior written consent of the  Administrative Agent or such Issuing Bank or the Swingline Lender, as the case may be.  provided, further, that (A) any waiver, amendment or modification of this Agreement that  by its terms affects the rights or duties under this Agreement of Lenders holding Loans or Commitments  of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be  effected by an agreement or agreements in writing entered into by Holdings, the Borrower and the  requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto  under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time,  (B) this Agreement may be amended (or amended and restated) with the written consent of the Required  Lenders, the Administrative Agent and the Borrower (i) to add one or more additional credit facilities  to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and  the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and  the other Loan Documents (and to the extent such credit facilities are secured by Liens on the Collateral  on an equal priority basis (but without regard to control of remedies) with the Liens on the Collateral  securing the Secured Obligations, to share ratably in prepayments with such Loans) and (ii) to include  appropriately the Lenders holding such credit facilities in any determination of the Required Lenders  on substantially the same basis as the Lenders prior to such inclusion, (C) this Agreement and other  Loan Documents may be amended or supplemented by an agreement or agreements in writing entered  into by the Administrative Agent and the Borrower or any other Loan Party to which such agreement  or agreements is to apply, without the need to obtain the consent of any Lender, to include “parallel  debt” or similar provisions, and any authorizations or granting of powers by the Lenders and the other  Secured Parties in favor of the Administrative Agent, in each case required to create in favor of the  Administrative Agent any security interest contemplated to be created under this Agreement, or to  perfect any such security interest, where the Administrative Agent shall have been advised by its  counsel that such provisions are necessary or advisable under local law for such purpose (with the  Borrower hereby agreeing to, and to cause its subsidiaries to, enter into any such agreement or  agreements upon reasonable request of the Administrative Agent promptly upon such request),  (D) upon notice thereof by the Borrower to the Administrative Agent with respect to the inclusion of  any previously absent covenant or other provision, this Agreement shall be amended by an agreement  in writing entered into by the Borrower and the Administrative Agent without the need to obtain the  consent of any Lender to include such covenant or other provision on the date of the incurrence of the  applicable Indebtedness to the extent required by the terms of such definition or section and (E) the  Borrower and the Administrative Agent may, without the input or consent of the other Lenders, effect  changes to this Agreement that are necessary and appropriate to provide the amendments contemplated  by each of Section 1.04(c) (so long as the Lenders shall have received prior written notice of such  amendment).  





 






195  Notwithstanding anything to the contrary contained in this Section 9.02, this Agreement,  the Loan Documents and any guarantees, collateral security documents and related documents executed by  Restricted Subsidiaries in connection with this Agreement may be in a form reasonably determined by the  Administrative Agent and may be, together with this Agreement, amended, supplemented and waived with  the consent of the Administrative Agent at the request of the Borrower without the need to obtain the  consent of any Lender if such amendment, supplement or waiver is delivered in order (i) to comply with  local Requirements of Law or advice of local counsel, (ii) to cure ambiguities inconsistencies, omissions,  errors, mistakes or defects or (iii) to cause such guarantee, collateral security document or other document  to be consistent with this Agreement and the other Loan Documents.    (c) In connection with any proposed amendment, modification, waiver or termination (a  “Proposed Change”) requiring the consent of all Lenders (or all Lenders of a Class) or all directly and  adversely affected Lenders (or all directly and adversely affected Lenders of a Class), if the consent of the  Required Lenders (or a Majority in Interest of the applicable Class) to such Proposed Change is obtained,  but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any  such Lender whose consent is not obtained as described in paragraph (b) of this Section being referred to  as a “Non-Consenting Lender”), then, so long as the Administrative Agent is not a Non-Consenting Lender,  the Borrower may, at their sole expense and effort, upon notice to such Non-Consenting Lender and the  Administrative Agent, (x) terminate the applicable Commitments of such Lender, and repay all obligations  of the Borrower owing to such Lender relating to the applicable Loans and participations held by such  Lender as of such termination date or (y) require such Non-Consenting Lender to assign and delegate,  without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its  interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such  obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment),  provided that (a) in the case of clause (y) above, the Borrower shall have received the prior written consent  of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an  assignment of Loans or Commitments, as applicable (and, if a Revolving Commitment is being assigned,  each Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, (b) such  Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its  Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees  and all other amounts (including any amounts under Section 2.11(a)), payable to it hereunder from the  Borrower or Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or  the Borrower (in the case of all other amounts) and (c) in the case of clause (y) above, unless waived, the  Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and  recordation fee specified in Section 9.04(b)(ii). Notwithstanding anything herein to the contrary, each party  hereto agrees that any assignment pursuant to the terms of this Section 9.02(c) may be effected pursuant to  an Assignment and Assumption executed by Holdings, the Borrower, the Administrative Agent and the  assignee and that the Non-Consenting Lender making such assignment need not be a party thereto.  (d) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary,  the Revolving Commitments, Term Loans and Revolving Exposure of any Lender that is at the time a  Defaulting Lender shall not have any voting or approval rights under the Loan Documents and shall be  excluded in determining whether all Lenders (or all Lenders of a Class), all affected Lenders (or all affected  Lenders of a Class) or the Required Lenders have taken or may take any action hereunder (including any  consent to any amendment or waiver pursuant to this Section 9.02); provided that any waiver, amendment  or modification requiring the consent of all Lenders (or all Lenders of a Class) or all affected Lenders (or  all affected Lenders of a Class) that affects any Defaulting Lender more adversely than other affected  Lenders shall require the consent of such Defaulting Lender.  (e) [Reserved].  





 






196  (f) Notwithstanding anything in this Section 9.02 to the contrary, (i) technical and conforming  modifications to the Loan Documents may be made with the consent of the Borrower and the Administrative  Agent (and no other Person) to the extent necessary (A) to integrate any Incremental Facilities, Other  Revolving Loans or Other Term Loans, (B) to integrate or make administrative modifications with respect  to borrowing and issuances of Letters of Credit, (C) to integrate any terms or conditions from any  Incremental Facility Amendment that are more restrictive than this Agreement in accordance with  Section 2.20(f) and (D) to make any amendments permitted by Section 2.14(b) (iii) without the consent of  any Lender or Issuing Bank, the Loan Parties and the Administrative Agent, the Collateral Agent or any  collateral agent may (in their respective sole discretion, or shall, to the extent required by any Loan  Document) enter into (x) any amendment, modification or waiver of any Loan Document, or enter into any  new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of  any security interest in any Collateral or additional property to become Collateral for the benefit of the  Secured Parties or as required by local law to give effect to, or protect any security interest for benefit of  the Secured Parties, in any property or so that the security interests therein comply with applicable law or  this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan  Document or (y) any applicable Intercreditor Agreement, in each case with the holders of Indebtedness  permitted by this Agreement to be secured by Liens on the Collateral.  Without limitation of the foregoing,  the Administrative Agent and the Borrower may, without the consent of any Lenders, (I) increase the  interest rates (including any interest rate margins or interest rate floors), fees and other amounts payable to  any Class or Classes of Lenders hereunder, (II) increase, expand and/or extend the call protection provisions  and any “most favored nation” provisions benefiting any Class or Classes of Lenders hereunder (including,  for the avoidance of doubt, the provisions of Sections 2.11(a) and 2.20(b)(iv) hereof) and/or (III) modify  any other provision hereunder or under any other Loan Document in a manner more favorable to the then- existing Lenders or Class or Classes of Lenders, in each case in connection with the incurrence of any  Incremental Facilities or other Indebtedness permitted hereunder, where the terms of any such Incremental  Facilities or other Indebtedness are more favorable to the lenders thereof than the corresponding terms  applicable to other Loans or Commitments then existing hereunder, and it is intended that one or more then- existing Classes of Loans or Commitments under this Agreement share in the benefit of such more favorable  terms in order to comply with the provisions hereof relating to the incurrence of such Incremental Facilities  or other Indebtedness.  In addition, the Administrative Agent and the Borrower may, in connection with  any increase to or refinancing of any Term Facility, enter into such modifications or amendments to this  Agreement as shall be necessary to ensure the Initial Term Loans, 2020 Incremental Term Loans, 2021  Incremental Term Loans and/or 2021-2 Incremental Term Loans, as applicable, are held by Lenders in the  same relative portions as immediately prior to such increase or refinancing.  SECTION 9.03 Expenses; Indemnity; Damage Waiver.  (a) The Borrower shall pay, if the Effective Date occurs, (i) all reasonable and documented or  invoiced out of pocket expenses incurred by the Agents, the Joint Lead Arrangers, the Joint Bookrunners,  and their respective Affiliates (without duplication), including the reasonable fees, charges and  disbursements of Latham & Watkins LLP and to the extent reasonably determined by the Administrative  Agent to be necessary one local counsel in each applicable jurisdiction and of such other counsel retained  with the Borrower’s consent (such consent not to be unreasonably withheld or delayed), in each case for  the Agents, the Joint Lead Arrangers and the Joint Bookrunners in connection with the structuring,  arrangement or syndication of the credit facilities provided for herein, the preparation, execution, delivery  or administration of the Loan Documents or any amendments, modifications or waivers of the provisions  thereof, (ii) all reasonable and documented or invoiced out-of-pocket expenses incurred by the Agents, the  Joint Lead Arrangers and their respective Affiliates, including the reasonable and documented or invoiced  fees, charges and disbursements of counsel for the Agents and of such other counsel retained with the  Borrower’s consent (such consent not to be unreasonably withheld or delayed) in connection with the  enforcement or protection of their rights in connection with the Loan Documents, including their rights  





 






197  under this Section; provided that such counsel shall be limited to one counsel for the Agents, taken as a  whole, such other counsel retained with the Borrower’s consent (such consent not to be unreasonably  withheld or delayed) and, if necessary, (x) one local counsel in each applicable jurisdiction (which may  include a single firm of special counsel acting in multiple jurisdictions) and (y) a single firm of regulatory  counsel, and (iii) to the extent Golub Capital Markets LLC has not been appointed as Administrative Agent  within 45 days after the Amendment No. 7 Effective Date, all reasonable and documented or invoiced out- of-pocket expenses incurred by Golub Capital LLC and its Affiliates, including the reasonable and  documented or invoiced fees, charges and disbursements of counsel for Golub Capital LLC and its  Affiliates in connection with the enforcement or protection of their rights in connection with the Loan  Documents, including their rights under this Section; provided that such counsel shall be limited to one  firm or counsel, such other counsel retained with the Borrower’s consent (such consent not to be  unreasonably withheld or delayed) and, if necessary, (x) one firm or local counsel in each applicable  jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) and (y) a  single firm of regulatory counsel.  (b) The Borrower shall indemnify the Administrative Agent, the Swingline Lender, any  Issuing Bank, the Joint Lead Arrangers, the Joint Bookrunners, each other Agent, each Lender and each  Related Party of any of the foregoing Persons (each such Person being called an “Indemnified Person”)  against, and hold each Indemnified Person harmless from, any and all losses, claims, damages and liabilities  (collectively, the “Losses”) of any kind or nature, and subject to the limitations set forth below, with respect  to legal fees and expenses, the reasonable and documented or invoiced out-of-pocket fees and expenses,  joint or several, to which any of the Indemnified Persons becomes subject, in each case to the extent of any  such Losses and related expenses to the extent arising out of, resulting from, or in connection with any  action, claim, litigation, investigation or other proceeding relating to (i) any Loan or Commitment, the  Transactions or the execution, delivery, enforcement, performance and administration of this Agreement,  the other Loan Documents and any such other documents or the use of the proceeds of the Loans or Letters  of Credit or (ii) the structuring, arrangement or syndication of the credit facilities provided for herein, the  preparation, execution, delivery or administration of this Agreement and the other Loan Documents or any  other agreement or instrument contemplated hereby or thereby or any amendments, modifications or  waivers of, or enforcement of, the provisions hereof or thereof, the performance by the parties to the Loan  Documents of their respective obligations hereunder or thereunder and the consummation of the  Transactions or any other transactions contemplated hereby or thereby (including any inquiry or  investigation of the foregoing (any of the foregoing, a “Proceeding”)) (regardless of whether such  Indemnified Person is a party thereto or whether or not such Proceeding was brought by the Borrower, its  equity holders, Affiliates or creditors or any other third person) and shall reimburse each such Indemnified  Person promptly for any reasonable and documented or invoiced out-of-pocket fees and expenses incurred  in connection with investigating, responding to or defending any of the foregoing (which in the case of  legal fees shall be limited to the reasonable and documented or invoiced out-of-pocket fees, expenses,  disbursements and other charges of a single firm of counsel for all Indemnified Parties, taken as a whole  and, to the extent necessary, (x) a single firm of local counsel in each appropriate local jurisdiction (which  may include a single firm of special counsel acting in multiple jurisdictions) and (y) a single firm of  regulatory counsel for all Indemnified Persons taken as a whole (and, solely in the case of an actual or  perceived conflict of interest where the Indemnified Person affected by such conflict notifies the Borrower  of any existence of such conflict and in connection with the investigating, responding to or defending any  of the foregoing has retained its own counsel, of one other firm of primary, local or regulatory counsel (as  applicable) for such affected Indemnified Person)); provided that the foregoing indemnity will not, as to  any Indemnified Person, apply to Losses or related expenses to the extent that they have resulted from (i)  the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified  Person’s Related Parties (as determined by a court of competent jurisdiction in a final and non-appealable  decision), (ii) a material breach of the obligations under the Loan Documents by, any Indemnified Person  or its Related Parties (as determined by a court of competent jurisdiction in a final and non-appealable  





 






198  decision) or (iii) any Proceeding that does not arise from any act or omission by Holdings, the Borrower or  any Related Party and that is brought by any Indemnified Person against another Indemnified Person;  provided that the Administrative Agent, the Joint Lead Arrangers, the Joint Lead Bookrunners and the other  Agents, to the extent fulfilling their respective roles as an agent or arranger hereunder and in their capacities  as such, shall remain indemnified in respect of such a Proceeding, to the extent that none of the exceptions  set forth in any of clauses (i) or (ii) of the immediately preceding proviso apply to such Person at such time.  (c) To the extent that Holdings or the Borrower fails to pay any amount required to be paid by  it to the Administrative Agent or any other Agent (or any sub-agent thereof), the Swingline Lender, any  Issuing Bank, the Joint Lead Arrangers or the Joint Bookrunners, or any Related Party of the Administrative  Agent, the Swingline Lender, any Issuing Bank, the Joint Lead Arrangers, the Joint Bookrunners or any  other Agent under paragraph (a) or (b) of this Section, and without limiting Holdings’ or the Borrower’s  obligation to do so, each Lender severally agrees to pay to the Administrative Agent or any other Agent (or  any sub-agent thereof), the Swingline Lender, such Issuing Bank, the Joint Lead Arrangers or the Joint  Bookrunners or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the  time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,  provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as  the case may be, was incurred by or asserted against the Administrative Agent or any other Agent (or any  sub-agent thereof), the Swingline Lender, such Issuing Bank, the Joint Lead Arrangers or the Joint  Bookrunners, or against any Related Party of the Administrative Agent acting for the Administrative Agent,  the Swingline Lender, such Issuing Bank, the Joint Lead Arrangers or the Joint Bookrunners in connection  with such capacity.  For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its  share of the aggregate Revolving Exposures, outstanding Loans and unused Commitments at the time.  The  obligations of the Lenders under this paragraph (c) are subject to the last sentence of Section 2.02(a) (which  shall apply mutatis mutandis to the Lenders’ obligations under this paragraph (c)).  (d) To the fullest extent permitted by applicable Requirements of Law, (i) neither Holdings  nor the Borrower shall assert, or permit any of their Affiliates or Related Parties to assert any claim against  any Indemnified Person for any damages arising from the use by others of information or other materials  obtained through telecommunications, electronic or other information transmission systems (including the  Internet), provided that such indemnity shall not, as to any Indemnified Person, be available to the extent  that such damages are determined by a court of competent jurisdiction by final, non-appealable judgment  to have resulted from the gross negligence or willful misconduct of, or a material breach of the Loan  Documents by, such Indemnified Person or its Related Parties and  (ii) neither Holdings, the Borrower, or  any Indemnified Person shall assert, or permit any of their Affiliates or Related Parties to assert any claim,  on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or  actual damages) arising out of, in connection with, or as a result of, any Loan Document or any agreement  or instrument contemplated thereby, the Transactions, any Loan or Letter of Credit or the use of the  proceeds thereof.  (e) All amounts due under this Section shall be payable not later than 30 days (x) after written  demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of  costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in  reasonable detail, together with backup documentation supporting the relevant reimbursement request;  provided, however, that any Indemnified Person shall promptly refund or return an indemnification  payment received hereunder to the extent that such Indemnified Person was not entitled to indemnification  with respect to such payment pursuant to this Section 9.03.  (f) For the avoidance of doubt, this Section 9.03 shall not apply to Taxes, except any Taxes  that represent Losses arising from any non-Tax claims.  





 






199  SECTION 9.04 Successors and Assigns; Etc.  (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the  parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any  Issuing Bank that issues any Letter of Credit), except that (i) except as provided in Section 6.03, the  Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior  written consent of each Lender (and any attempted assignment or transfer by the Borrower without such  consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations  hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or implied, shall  be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns  permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants  (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby,  the sub-agents of the Administrative Agent, the other Agents, any Indemnified Person, the Related Parties  of each of the Agents, the Indemnified Persons, the Issuing Banks and the Lenders) any legal or equitable  right, remedy or claim under or by reason of this Agreement.  (b) (i) Subject to the conditions set forth in clause (ii), any Lender may assign to one or more  Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a  portion of its Commitment and the Loans at the time owing to it) with the prior written consent of (A) the  Borrower (such consent not to be unreasonably withheld); provided that no consent of the Borrower shall  be required for an assignment (1) by a Term Lender to any Term Lender or an Affiliate of any Term Lender,  (2) by a Term Lender to an Approved Fund of any Term Lender, (3) by a Revolving Lender (I) to any other  existing Revolving Lender or (II) to any Person that is an Affiliate of any Revolving Lender provided that  such Person is at least as creditworthy as the Revolving Lender assigning its rights and obligations under  this Agreement (each such Affiliate, a “Permitted Revolving Lender Affiliate Transferee”) or (4) if an Event  of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing with respect to the Borrower;  provided further that the Borrower shall have the right to withhold its consent to any assignment if, in order  for such assignment to comply with applicable law, Holdings or the Borrower would be required to obtain  the consent of, or make any filing or registration with, any Governmental Authority, (B) the Administrative  Agent (such consent not to be unreasonably withheld or delayed); provided that no consent of the  Administrative Agent shall be required for an assignment of a Term Loan to an Affiliate or Approved Fund  of any Term Lender or of a Revolving Commitment to any other existing Revolving Lender or to any  Permitted Revolving Lender Affiliate Transferee and (C) each Issuing Bank and the Swingline Lender  (such consent not to be unreasonably withheld or delayed); provided that no consent of any Issuing Bank  or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or Initial  Term Loan Commitment.  Notwithstanding anything in this Section 9.04 to the contrary, if any Person the  consent of which is required by this paragraph with respect to any assignment of Term Loans has not given  the Administrative Agent written notice of its objection to such assignment within 10 Business Days (after  receipt of written notice to such Person, such Person shall be deemed to have consented to such assignment;  provided, that this sentence shall not apply to the Borrower with respect to any assignment of Revolving  Commitments and/or Revolving Loans.  (ii) Assignments shall be subject to the following additional conditions:  (A) except  in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an  assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any  Class, the amount of the Commitment or Loans of the assigning Lender subject to each such  assignment (determined as of the trade date specified in the Assignment and Assumption with  respect to such assignment or, if no trade date is so specified, as of the date the Assignment and  Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be  less than in the case of a Revolving Loan or Revolving Commitment, $1,000,000 (and integral  multiples of $1,000,000 in excess thereof) or, in the case of a Term Loan $1,000,000 (and integral  





 






200  multiples of $1,000,000 in excess thereof), unless the Borrower and the Administrative Agent  otherwise consent (such consent not to be unreasonably withheld or delayed), (B) each partial  assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s  rights and obligations under this Agreement, provided that this subclause (B) shall not be construed  to prohibit assignment of a proportionate part of all the assigning Lender’s rights and obligations  in respect of one Class of Commitments or Loans, (C) the parties to each assignment shall execute  and deliver to the Administrative Agent an Assignment and Assumption (which shall include a  representation by the assignee that it is not a Disqualified Lender or an Affiliate of a Disqualified  Lender (so long as the list of Disqualified Lenders (other than any Person that is a Disqualified  Lender pursuant to clause (iii)(y) and (z) of the definition thereof) has been made available to all  Lenders party to such assignment following the reasonable written request therefore with such  written request being concurrently delivered to the Borrower)), together (unless waived by the  Administrative Agent) with a processing and recordation fee of $3,500, provided that assignments  made pursuant to Section 2.19, Section 2.24(h) or Section 9.02(c) shall not require the signature of  the assigning Lender to become effective; provided further that such recordation fee shall not be  payable in the case of assignments of Term Loans to or by any Joint Bookrunner or Affiliate thereof  in connection with the primary syndication thereof or pursuant to arrangements directly related to  such primary syndication contemplated as of the Effective Date, (D) the assignee, if it shall not be  a Lender, shall deliver to the Administrative Agent any tax forms required by Section 2.17(e), all  “know your customer” documents requested by the Administrative Agent pursuant to anti-money  laundering rules and regulations, including, but not limited to, the USA PATRIOT Act, and an  Administrative Questionnaire in which the assignee designates one or more credit contacts to whom  all syndicate-level information (which may contain material non-public information about the  Borrower, the other Loan Parties and their Related Parties or their respective securities) will be  made available and who may receive such information in accordance with the assignee’s  compliance procedures and applicable laws, including Federal and state securities laws, (E) no  assignment of any Loans, Commitments or any obligations in respect of LC Exposure or Swingline  Exposure may be made to Holdings, the Borrower or any Subsidiary or Affiliate thereof, and  (F) unless the Borrower otherwise consents, no assignment of all of the Revolving Commitment of  a Lender that is also an Issuing Bank or Swingline Lender may be made unless the assignee shall  be or become an Issuing Bank and/or a Swingline Lender, as applicable, and assume a ratable  portion of the rights and obligations of such assignor in its capacity as an Issuing Bank and/or a  Swingline Lender.  (iii) Subject to acceptance and recording thereof pursuant to clause (v) of this  paragraph (b), from and after the effective date specified in each Assignment and Assumption, the  assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such  Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,  and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment  and Assumption, be released from its obligations under this Agreement (and, in the case of an  Assignment and Assumption covering all of the assigning Lender’s rights and obligations under  this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the  benefits of (subject to the obligations and limitations of) Sections 2.15, 2.16, 2.17 and 9.03 and to  any fees payable hereunder that have accrued for such Lender’s account but have not yet been  paid).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that  does not comply with this Section shall be treated for purposes of this Agreement as a sale by such  Lender of a participation in such rights and obligations in accordance with Section 9.04(c)(i).  (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the  Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered  to it and a register for the recordation of the names and addresses of the Lenders, and the  





 






201  Commitment of, and principal and stated interest amounts of the Loans and LC Disbursements  owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries  in the Register shall be conclusive absent manifest error, and Holdings, the Borrower, the  Administrative Agent, each Issuing Bank and the Lenders shall treat each Person whose name is  recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this  Agreement, notwithstanding notice to the contrary.  In addition, the Administrative Agent shall  maintain on the Register information regarding the designation, and revocation of designation, of  any Lender as a Defaulting Lender.  The Register shall be available for inspection by Holdings, the  Borrower and, solely with respect to its Loans or Commitments, any Lender, at any reasonable time  and from time to time upon reasonable prior written notice.  Notwithstanding the foregoing, in no  event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any  Lender is a Disqualified Lender (or affiliates of Disqualified Lenders), nor shall the Administrative  Agent be (x) obligated to monitor the aggregate amount of the Loans or Incremental Facilities held  by Disqualified Lenders (or affiliates of Disqualified Lenders) or (y) be liable for any assignment  to Disqualified Lenders or other assignees in violation of this Credit Agreement.  (v) Upon its receipt of a duly completed Assignment and Assumption executed by  an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and  any tax forms required by Section 2.17(e) (unless the assignee shall already be a Lender hereunder),  the processing and recordation fee referred to in this paragraph (b) and any written consent to such  assignment required by this paragraph (b), the Administrative Agent shall accept such Assignment  and Assumption and record the information contained therein in the Register.  No assignment shall  be effective for purposes of this Agreement unless it has been recorded in the Register as provided  in this paragraph (b).  (vi) The words “execution,” “signed,” “signature” and words of like import in any  Assignment and Assumption shall be deemed to include electronic signatures or the keeping of  records in electronic form, each of which shall be of the same legal effect, validity or enforceability  as a manually executed signature or the use of a paper-based recordkeeping system, as the case may  be, to the extent and as provided for in any applicable law, including the Federal Electronic  Signatures in Global and National Commerce Act, the New York State Electronic Signatures and  Records Act or any other similar state laws based on the Uniform Electronic Transactions Act.  (c) (i) Any Lender may, without the consent of Holdings, the Borrower or the Administrative  Agent, sell participations to one or more banks or other Persons (other than to a Person that is not an Eligible  Assignee; provided that for the purposes of this provision, Disqualified Lenders shall be deemed to be  Eligible Assignees unless a list of Disqualified Lenders (other than any Person that is a Disqualified Lender  pursuant to clause (iii)(y) and (z) of the definition thereof) has been made available to all Lenders party to  such participation and following the reasonable written request therefor) (a “Participant”) in all or a portion  of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments  and Loans of any Class); provided that (A) such Lender’s obligations under this Agreement shall remain  unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance  of such obligations and (C) Holdings, the Borrower, the Administrative Agent, the Issuing Banks and the  other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s  rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender  sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan  Documents and to approve any amendment, modification or waiver of any provision of the Loan  Documents, provided that such agreement or instrument may provide that such Lender will not, without the  consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to  Section 9.02(b) that directly and adversely affects such Participant.  Subject to clause (ii) below, the  Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17  





 






202  (subject to the obligations and limitations thereof, it being understood that any tax forms required by  Section 2.17(e) shall be provided to the Lender) to the same extent as if it were a Lender and had acquired  its interest by assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each  Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided that  such Participant shall be subject to Section 2.18(c) as though it were a Lender.  (ii) No Participant shall be entitled to receive any greater payment under Section  2.15, 2.16 or 2.17 than the participating Lender would have been entitled to receive with respect to  the participation sold to such Participant, unless the sale of the participation to such Participant is  made with the Borrower’s prior written consent (not to be unreasonably withheld or delayed)  expressly acknowledging that such Participant’s entitlement to benefits under Section 2.15, 2.16 or  2.17 is not limited to what the participating Lender would have been entitled to receive absent the  participation.  (iii) Each Lender that sells a participation shall, acting solely for this purpose as a  non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address  of each Participant and the principal and stated interest amounts of each Participant’s interest in the  Loans or other obligations under the Loan Documents (the “Participant Register”); provided that  no Lender shall have any obligation to disclose all or any portion of the Participant Register  (including the identity of any participant or any information relating to a participant’s interest in  any obligations under any Loan Document) to any Person except to the extent that such disclosure  is necessary to establish that such obligation is in registered form under Section 5f.103-1(c) or  Proposed Section 1.163-5(b) of the United States Treasury Regulations (or, in each case, any  amended or successor version).  The entries in the Participant Register shall be conclusive (absent  manifest error), and each Person whose name is recorded in the Participant Register pursuant to the  terms hereof shall be treated as a Participant for all purposes of this Agreement, notwithstanding  notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as  Administrative Agent) shall have no responsibility for maintaining a Participant Register.  (d) Any Lender may, without the consent of the Borrower or the Administrative Agent, at any  time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure  obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve  Bank or other central bank, and this Section shall not apply to any such pledge or assignment of a security  interest, provided that no such pledge or assignment of a security interest shall release a Lender from any  of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  (e) In connection with any assignment of rights and obligations of any Defaulting Lender  hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto  set forth herein, the parties to the assignment shall make such additional payments to the Administrative  Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright  payment, purchases by the assignee of participations or subparticipations, or other compensating actions,  including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata  share of Loans previously requested but not funded by the Defaulting Lender, to each of which the  applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment  liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and  interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and  participations in Letters of Credit and Swingline Loans in accordance with its Applicable Percentage.   Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting  Lender hereunder shall become effective under applicable law without compliance with the provisions of  this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes  of this Agreement until such compliance occurs.  





 






203  (f) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting  Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from  time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide  to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to  make to the Borrower pursuant to this Agreement, provided that (i) nothing herein shall constitute a  commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise  fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan  pursuant to the terms hereof.  The making of a Loan by an SPV hereunder shall utilize the Commitment of  the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Each  party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation  under this Agreement (all liability for which shall remain with the Granting Lender).  In furtherance of the  foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this  Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding  commercial paper or other senior indebtedness of any SPV, such party will not institute against, or join any  other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or  liquidation proceedings under the laws of the United States or any State thereof.  In addition,  notwithstanding anything to the contrary contained in this Section 9.04, any SPV may (i) with notice to,  but without the prior written consent of, the Borrower and the Administrative Agent and without paying  any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to  any financial institutions (consented to by the Borrower and Administrative Agent) providing liquidity or  credit support to or for the account of such SPV to support the funding or maintenance of Loans and  (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency,  commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such  SPV.  (g) (i) In the event of any assignment or participation by a Lender without the Borrower’s  consent or deemed consent (if applicable) (A) to any Disqualified Lender or (B) to the extent the Borrower’s  consent is required under this Section 9.04, to any other Person, the Borrower shall be entitled at their sole  expense and effort to seek specific performance to unwind any such assignment or participation in addition  to injunctive relief (without posting a bond or presenting evidence of irreparable harm) or any other  remedies available to the Borrower at law or in equity in respect of such assignor or assignee; it being  understood and agreed that Holdings, the Borrower and their respective subsidiaries will suffer irreparable  harm if any Lender breaches any obligation under this Section 9.04 as it relates to any assignment,  participation or pledge of any Loan or Commitment to any Disqualified Lender or any other Person to  whom the Borrower’s consent is required but not obtained (or has not been deemed consented to).  Upon  the request of any Lender or as otherwise required herein, the Administrative Agent shall make available  to such Lender the list of Disqualified Lenders at the relevant time and such Lender may provide the list to  any potential assignee or participant on a confidential basis in accordance with Section 9.12 for the purpose  of verifying whether such Person is a Disqualified Lender.  For the avoidance of doubt, the Administrative  Agent shall not have any responsibility or liability for monitoring the list or identities of, or enforcing  provisions relating to, Disqualified Lenders.  (ii) If any assignment or participation under this Section 9.04 is made to any Affiliate  of any Disqualified Lender (other than any Competitor Debt Fund Affiliate) without the Borrower’s  prior written consent or deemed consent (any such person, a “Disqualified Person”), then, such  assignment shall not be null and void, but the Borrower may, at its sole expense and effort, upon  notice to the applicable Disqualified Person and the Administrative Agent, (A) terminate any  Commitment of such Disqualified Person and repay all obligations of the Borrower owing to such  Disqualified Person, (B) in the case of any outstanding Term Loans, held by such Disqualified  Person, purchase such Term Loans by paying the amount that such Disqualified Person paid to  acquire such Term Loans, plus accrued interest thereon, accrued fees and all other amounts payable  





 






204  to it hereunder and/or (C) require that such Disqualified Person assign, without recourse (in  accordance with and subject to the restrictions contained in this Section 9.04), all of its interests,  rights and obligations under this Agreement to one or more Eligible Assignees; provided that (I) in  the case of clause (B), the applicable Disqualified Person has received payment of an amount equal  to the lesser of (1) par and (2) the amount that such Disqualified Person paid for the applicable  Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder,  from the Borrower, (II) in the case of clauses (A) and (B), the Borrower shall be liable to the  relevant Disqualified Person under Section 2.16 if any Eurocurrency Loan owing to such  Disqualified Person is repaid or purchased other than on the last day of the Interest Period relating  thereto and (III) in the case of clause (C), the relevant assignment shall otherwise comply with this  Section 9.04 (except that no registration and processing fee required under this Section 9.04 shall  be required with any assignment pursuant to this paragraph). Nothing in this Section 9.04(h) shall  be deemed to prejudice any right or remedy that the Borrower may otherwise have at law or equity.  For the avoidance of doubt, the Administrative Agent shall not have any responsibility or liability  for monitoring the identities of, or enforcing provisions relating to, Disqualified Persons.  (h) Upon the cancellation or retirement of any Loans pursuant to this Section 9.04, (A) the  aggregate principal amount (calculated on the face amount thereof) shall be deemed reduced by the full par  value of the aggregate principal amount of the Term Loans so retired or cancelled and (B) the  Administrative Agent shall record such cancellation or retirement in the Register.  (i) Notwithstanding anything to the contrary contained herein any Issuing Bank may, upon 30  days’ notice to the Borrower and the Lenders, resign as an Issuing Bank; provided that on or prior to the  expiration of such 30-day period with respect to such resignation, such Issuing Bank shall have identified,  in consultation with the Borrower, a successor Issuing Bank willing to accept its appointment as successor  Issuing Bank.  Such successor Issuing Bank shall become a party to this Agreement as an Issuing Bank and  shall assume the resigning Issuing Bank’s Applicable LC Fronting Sublimit and its obligation to issue  additional Letters of Credit in accordance with the terms of this Agreement.  In the event of any such  resignation of an Issuing Bank, the Borrower shall be entitled to appoint from among the Lenders willing  to accept such appointment a successor Issuing Bank hereunder; provided that no failure by the Borrower  to appoint any such successor shall affect the resignation of the relevant Issuing Bank, as the case may be.   If an Issuing Bank resigns as an Issuing Bank, it shall retain all the rights and obligations of an Issuing Bank  hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an  Issuing Bank and all obligations (solely with respect to such Issuing Bank’s LC Commitment) with respect  thereto (including the right to require the Lenders to make ABR Loans or Swingline Loans pursuant to  Section 2.05(f) or fund risk participations the amount of LC Disbursements made by such Issuing Bank and  not reimbursed).  (j) Norvax shall have no rights or obligations as a Borrower hereunder until the consummation  of the Merger, respectively, and any representations and warranties of Norvax hereunder shall not become  effective until such time.  Upon consummation of the Acquisition, the signature pages to this Agreement  and the other Loan Documents submitted on behalf of Norvax, shall be deemed released, and upon  consummation of the Merger, Norvax shall succeed to all the rights and obligations of Merger Sub under  this Agreement, and all representations and warranties of the Norvax shall become effective as of the time  of consummation of the Merger, without any further action by any Person.  SECTION 9.05 Survival.  All covenants, agreements, representations and warranties made by  the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection  with or pursuant to any Loan Document shall be considered to have been relied upon by the other parties  hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans  and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on  





 






205  its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have  had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is  extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued  interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid  or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.  The  provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and  effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans,  the expiration or termination of the Letters of Credit and the Commitments or the termination of this  Agreement or any provision hereof.  Notwithstanding the foregoing or anything else to the contrary set  forth in this Agreement or any other Loan Document, in the event that, in connection with the refinancing  or repayment in full of the credit facilities provided for herein, an Issuing Bank shall have provided to the  Administrative Agent a written consent to the release of the Revolving Lenders from their obligations  hereunder with respect to any Letter of Credit issued by such Issuing Bank (whether as a result of the  obligations of the Borrower (and any other account party) in respect of such Letter of Credit having been  collateralized in full by a deposit of cash with such Issuing Bank or being supported by a letter of credit  that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time  such Letter of Credit shall cease to be a “Letter of Credit” outstanding hereunder for all purposes of this  Agreement and the other Loan Documents, and the Revolving Lenders shall be deemed to have no  participations in such Letter of Credit, and no obligations with respect thereto, under Section 2.05(e) or (f).  SECTION 9.06 Counterparts; Integration; Effectiveness.  This Agreement may be executed in  counterparts (and by different parties hereto on different counterparts), each of which shall constitute an  original, but all of which when taken together shall constitute a single contract.  This Agreement, the other  Loan Documents, the Fee Letter and any separate letter agreements with respect to fees payable to the  Agents or the syndication of the Loans and Commitments constitute the entire contract among the parties  relating to the subject matter hereof and supersede any and all previous agreements and understandings,  oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement  shall become effective when it shall have been executed by the Administrative Agent and when the  Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures  of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties  hereto and their respective successors and assigns.  Delivery of an executed counterpart of a signature page  of this Agreement by facsimile or other electronic means shall be effective as delivery of an original  counterpart of this Agreement.  SECTION 9.07 Severability.  Any provision of this Agreement held to be invalid, illegal or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,  illegality or unenforceability without affecting the validity, legality and enforceability of the remaining  provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate  such provision in any other jurisdiction.  SECTION 9.08 Right of Setoff.  If an Event of Default shall have occurred and be continuing,  each Lender and each Issuing Bank is hereby authorized at any time and from time to time, to the fullest  extent permitted by law, to set off and apply any and all deposits (general or special, time or demand,  provisional or final, in whatever currency) or other amounts at any time held and other obligations (in  whatever currency) at any time then due and owing by such Lender or such Issuing Bank, to or for the credit  or the account of Holdings or the Borrower against any of and all the obligations of Holdings or the  Borrower then due and owing under this Agreement held by such Lender or Issuing Bank, irrespective of  whether or not such Lender or Issuing Bank shall have made any demand under this Agreement and  although such obligations are owed to a branch or office of such Lender or Issuing Bank different from the  branch or office holding such deposit or obligated on such indebtedness.  The applicable Lender and  applicable Issuing Bank shall notify the Borrower and the Administrative Agent of such setoff and  





 






206  application, provided that any failure to give or any delay in giving such notice shall not affect the validity  of any such setoff and application under this Section 9.08.  The rights of each Lender and each Issuing  Bank, under this Section 9.08 are in addition to other rights and remedies (including other rights of setoff)  that such Lender, such Issuing Bank may have.  Notwithstanding the foregoing, no amount setoff from any  Guarantor shall be applied to any Excluded Swap Obligation of such Guarantor.  SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process.  (a) This Agreement shall be construed in accordance with and governed by the law of the State  of New York; provided, that, notwithstanding the governing law provisions of the Loan Documents, it is  understood and agreed that (i) the interpretation of the definition of “Material Adverse Effect” (and whether  or not a Material Adverse Effect (as defined in the Merger Agreement) has occurred), (ii) the determination  of the accuracy of any Specified Merger Agreement Representation and whether as a result of any  inaccuracy thereof either the Borrower or its applicable affiliate has the right to terminate its obligations  under the Merger Agreement or to decline to consummate the Merger and (iii) the determination of whether  the Merger has been consummated in accordance with the terms of the Merger Agreement and, in any case,  claims or disputes arising out of any such interpretation or determination or any aspect thereof shall, in each  case, be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of  the laws that might otherwise govern under applicable principles of conflicts of laws thereof.  (b) Each of parties hereto hereby irrevocably and unconditionally submits, for itself and its  property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York  County and of the United States District Court of the Southern District of New York sitting in New York  County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to  any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto  hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding  shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal  court.  Each of the parties hereto agrees 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.  Nothing in any Loan Document shall affect any right that the Administrative Agent, any  Issuing Bank, the Collateral Agent or any Lender may otherwise have to bring any action or proceeding  relating to any Loan Document against Holdings, the Borrower or their respective properties in the courts  of any jurisdiction.  (c) Each of parties hereto hereby irrevocably and unconditionally waives, to the fullest extent  it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue  of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in  paragraph (b) of this Section.  Each of the parties hereto hereby irrevocably waives, to the fullest extent  permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in  any such court.  (d) Each party to this Agreement irrevocably consents to service of process in the manner  provided for notices in Section 9.01.  Nothing in any Loan Document will affect the right of any party to  this Agreement to serve process in any other manner permitted by law.  SECTION 9.10 WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY  IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY  RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR  INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE  TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR  ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,  





 






207  AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR  OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK  TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE  OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,  AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.  SECTION 9.11 Headings.  Article and Section headings and the Table of Contents used herein  are for convenience of reference only, are not part of this Agreement and shall not affect the construction  of, or be taken into consideration in interpreting, this Agreement.  SECTION 9.12 Confidentiality.  (a) Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain  the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to  its and its Affiliates’ directors, officers, employees, trustees and agents, including accountants, legal counsel  and other agents and advisors (collectively, the “Representatives”) on a “need to know” basis solely in  connection with the transactions contemplated hereby (it being understood that the Persons to whom such  disclosure is made will be informed of the confidential nature of such Information and instructed to keep  such Information confidential and any failure of such Persons to comply with this Section 9.12 shall  constitute a breach of this Section 9.12 by the Administrative Agent, the relevant Issuing Bank or the  relevant Lender, as applicable); provided, that unless the Borrower otherwise consents, no such disclosure  shall be made by the Administrative Agent, the Issuing Bank any Lender or any Affiliate or Representative  thereof to any Affiliate or Representative of the Administrative Agent, any Issuing Bank or any Lender that  is a Disqualified Lender, (ii) (x) to the extent requested by any regulatory authority, required by applicable  law or by any subpoena or similar legal process or (y) necessary in connection with the exercise of remedies;  provided that, (A) in each case, unless specifically prohibited by applicable law or court order, each Lender  and the Administrative Agent shall promptly notify the Borrower of any request by any governmental  agency or representative thereof (other than any such request in connection with an examination of the  financial condition of such Lender by such governmental agency or other routine examinations of such  Lender by such governmental agency) for disclosure of any such non-public information prior to disclosure  of such information and (B) in the case of clause (y) only, each Lender and the Administrative Agent shall  use reasonable best efforts to ensure that such Information is kept confidential in connection with the  exercise of such remedies, and provided, further, that in no event shall any Lender or the Administrative  Agent be obligated or required to return any materials furnished by Holdings, the Borrower or any of their  Subsidiaries, (iii) to any other party to this Agreement, (iv) subject to an acknowledgment and acceptance  by the relevant recipient that such Information is being disseminated on a confidential basis (on  substantially similar terms to those of this Section or as otherwise reasonably acceptable to the Borrower  and the Administrative Agent), to (x) any Eligible Assignee of or Participant in, or any prospective Eligible  Assignee of or prospective Participant in, any of its rights or obligations under this Agreement or (y) any  direct or indirect contractual counterparty to any Swap Agreement relating to any Loan Party or their  Subsidiaries and its obligations under the Loan Documents, (v) with the consent of the Borrower, in the  case of Information provided by Holdings, the Borrower or any other Subsidiary or (vi) to the extent such  Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes  available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis from a  source other than Holdings or the Borrower.  In addition, the Agents and the Lenders may disclose the  existence of this Agreement, the amount of the Credit Facilities, the Effective Date and publicly available  information about this Agreement to market data collectors, similar service providers to the lending  industry, and service providers to the Agents and the Lenders in connection with the administration and  management of this Agreement, the other Loan Documents, the Commitments and the Borrowings  hereunder.  For the purposes of this Section, “Information” means all information received from Holdings  or the Borrower relating to Holdings, the Borrower, any Subsidiary or their business, other than any such  





 






208  information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to  disclosure by Holdings or the Borrower.  Any Person required to maintain the confidentiality of Information  as provided in this Section shall be considered to have complied with its obligation to do so if such Person  has exercised the same degree of care to maintain the confidentiality of such Information as such Person  would accord to its own confidential information.  (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN  SECTION 9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE  MATERIAL NON-PUBLIC INFORMATION CONCERNING HOLDINGS, THE BORROWER, THE  LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES AND  CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE  OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL  NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND  APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.  (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND  AMENDMENTS FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT  PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT, WILL BE  SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC  INFORMATION ABOUT HOLDINGS, THE BORROWER, THE OTHER LOAN PARTIES AND  THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.  ACCORDINGLY, EACH  LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT  HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY  RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN  ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING  FEDERAL AND STATE SECURITIES LAWS.  SECTION 9.13 USA Patriot Act.  Each Lender and the Administrative Agent (for itself and  not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the requirements of Title III  of the USA Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record  information that identifies each Loan Party, which information includes the name and address of such Loan  Party and other information that will allow such Lender or Administrative Agent, as applicable, to identify  each Loan Party in accordance with the Title III of the USA Patriot Act and the Beneficial Ownership  Regulation.  SECTION 9.14 Judgment Currency.  (a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum  owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that  it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal  banking procedures in the relevant jurisdiction the first currency could be purchased with such other  currency on the Business Day immediately preceding the day on which final judgment is given.  (b) The obligations of the Borrower in respect of any sum due to any party hereto or any holder  of any obligation owing hereunder (the “Applicable Creditor”) shall, notwithstanding any judgment in a  currency (the “Judgment Currency”) other than the currency in which such sum is stated to be due hereunder  (the “Agreement Currency”), be discharged only to the extent that, on the Business Day following receipt  by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable  Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the  Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased  is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrower  





 






209  agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable  Creditor against such loss.  The obligations of the Borrower under this Section shall survive the termination  of this Agreement and the payment of all other amounts owing hereunder.  SECTION 9.15 Release of Liens and Guarantees.  A Subsidiary Loan Party shall automatically  be released from its obligations under the Loan Documents, and all security interests created by the Security  Documents in Collateral owned by such Subsidiary Loan Party shall be released, (1) automatically upon  the consummation of any single transaction or related series of transactions permitted by this Agreement as  a result of which such Subsidiary Loan Party ceases to be a Restricted Subsidiary (including pursuant to a  merger with a Subsidiary that is not a Loan Party or a designation as an Unrestricted Subsidiary), or (2)  upon notice by the Borrower to the Administrative Agent, if a Subsidiary Loan Party becomes an Excluded  Subsidiary, including, in connection with a transaction permitted under this Agreement, the result of which  such Subsidiary Loan Party ceases to be a wholly-owned Subsidiary as contemplated by the definition of  “Excluded Subsidiary”; provided that a Subsidiary Loan Party shall not be released from the Guarantee in  connection with a de minimis transfer of Equity Interests in such Subsidiary Loan Party if there is no bona  fide business purpose for each transfer of Equity Interests and such transfer of Equity Interests is intended  solely to obtain a release of the Guarantee, in each case as determined in good faith by the Borrower.  The  security interests in any applicable Collateral created by the Security Documents or any applicable  Guarantee shall be released, (i) automatically upon any sale or other transfer as part of or in connection  with a Disposition by any Loan Party (other than to Holdings, the Borrower or any other Loan Party) of  any Collateral in a transaction permitted under this Agreement, (ii) upon notice by the Borrower to the  Administrative Agent, if any property granted to or held by the Administrative Agent under any Loan  Documents does not constitute (or ceases to constitute) Collateral, including by becoming an Excluded  Asset or (iii) upon the effectiveness of any written consent to the release of the Lien or security interest  created under any Security Document in any Collateral or the release of any Loan Party from its Guarantee  under the Guarantee Agreement pursuant to Section 9.02.  Upon the occurrence of the Termination Date,  all obligations under the Loan Documents (other than obligations that by their terms survive the termination  of the Loan Documents) and all security interests created by the Security Documents shall be automatically  released.  In connection with any termination or release pursuant to this Section or in connection with any  subordination of its interest as required by Article VIII, the Administrative Agent shall execute and deliver  to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably  request to evidence such termination or release.  Any execution and delivery of documents pursuant to this  Section shall be without recourse to or warranty by the Administrative Agent.  The Lenders irrevocably  authorize the Administrative Agent to release or subordinate any Lien on any property granted to or held  by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien  on such property that is permitted by Section 6.02(ii), 6.02(iv), 6.02(v), 6.02(vi), 6.02(vii), 6.02(viii),  6.02(xi), 6.02(xii), 6.02(xiii), 6.02(xiv), 6.02(xv), 6.02(xvi), 6.02(xvii), 6.02(xviii), 6.02(xxi), 6.02(xxii),  6.02(xxiii), 6.02(xxv), 6.02(xxvi), 6.02(xxvii), 6.02(xxviii), 6.02(xxix), 6.02(xxxi), 6.02(xxxiv), or  6.02(xxxv) in each case, to the extent required by the terms of the obligations secured by such Liens  pursuant to documents reasonably acceptable to the Administrative Agent.  SECTION 9.16 No Fiduciary Relationship.  Each of Holdings and the Borrower, on behalf of  itself and its Subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby  and any communications in connection therewith, Holdings, the Borrower, the other Subsidiaries and their  Affiliates, on the one hand, and the Administrative Agent, the Agents, the Lenders and their respective  Affiliates, and Agents and their Affiliates on the other hand, will have a business relationship that does not  create, by implication or otherwise, any fiduciary duty on the part of the Administrative Agent, the Lenders  or their Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions  or communications.  SECTION 9.17 Permitted Intercreditor Agreements.  





 






210  (a) Each of the Lenders, the Issuing Banks and the other Secured Parties acknowledges that  obligations of the Borrower and the Guarantors under any Incremental Equivalent Debt, any Ratio  Indebtedness, any Acquisition Debt, any Permitted Equal Priority Refinancing Debt and any Permitted  Junior Priority Refinancing Debt may be secured by Liens on assets of the Borrower and the Guarantors  that constitute Collateral.  Each of the Lenders, the Issuing Banks and the other Secured Parties hereby  irrevocably authorizes and directs each of the Administrative Agent and the Collateral Agent to execute  and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or  other action by such Secured Party and the Administrative Agent and the Collateral Agent agree (to the  extent consistent with the standards set forth in the definition of “Intercreditor Agreements”, as applicable)  to so execute, (i) from time to time upon the request of the Borrower, in connection with the establishment,  incurrence, amendment, refinancing or replacement of any such Indebtedness, any applicable Intercreditor  Agreement (it being understood that each of the Administrative Agent and the Collateral Agent is hereby  authorized and directed to determine the terms and conditions of any such Intercreditor Agreement as  contemplated by, and subject to the provisions of, the definition of the terms “Intercreditor Agreement”),  and (ii) any documents relating thereto.  (b) Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably  (i) consents to the treatment of Liens to be provided for under the Intercreditor Agreements, (ii) agrees that,  upon the execution and delivery thereof, such Secured Party will be bound by the provisions of any  Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the provisions  of any Intercreditor Agreement, (iii) agrees that no Secured Party shall have any right of action whatsoever  against the Administrative Agent or the Collateral Agent as a result of any action taken by the  Administrative Agent or the Collateral Agent pursuant to this Section or in accordance with the terms of  any Intercreditor Agreement and (iv) authorizes and directs each of the Administrative Agent and the  Collateral Agent to carry out the provisions and intent of each such document.  (c) Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably  further authorizes and directs each of the Administrative Agent and the Collateral Agent to execute and  deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other  action by such Secured Party, any amendments, supplements or other modifications of any Intercreditor  Agreement that the Borrower may from time to time request (i) to give effect to any establishment,  incurrence, amendment, extension, renewal, Refinancing or replacement of any Incremental Equivalent  Debt, any Ratio Indebtedness, any Acquisition Debt, any Permitted Equal Priority Refinancing Debt and  any Permitted Junior Priority Refinancing Debt, (ii) to confirm for any party that such Intercreditor  Agreement is effective and binding upon the Administrative Agent or the Collateral Agent, as applicable,  on behalf of the Secured Parties or (iii) to effect any other amendment, supplement or modification so long  as the resulting agreement would constitute an Intercreditor Agreement if executed at such time as a new  agreement.  (d) Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably  further authorizes and directs each of the Administrative Agent and the Collateral Agent to execute and  deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other  action by such Secured Party, any amendments, supplements or other modifications of any Security  Document to add or remove any legend that may be required pursuant to any Intercreditor Agreement.  (e) Each of the Administrative Agent and the Collateral Agent shall have the benefit of the  provisions of Article VIII with respect to all actions taken by it pursuant to this Section or in accordance  with the terms of any Intercreditor Agreement to the full extent thereof.  SECTION 9.18 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.   Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement  





 






211  or understanding among any such parties, each party hereto acknowledges that any liability of any Lender  or Issuing Bank that is an EEA Financial Institution arising under any Loan Document, to the extent such  liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution  Authority and agrees and consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by an EEA Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an  EEA Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other instruments  of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that  may be issued to it or otherwise conferred on it, and that such shares or other instruments of  ownership will be accepted by it in lieu of any rights with respect to any such liability under this  Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the exercise of the  write-down and conversion powers of any EEA Resolution Authority.  SECTION 9.19 Electronic Execution of Assignments and Certain Other Documents.  The  words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document  to be signed in connection with this Agreement and the transactions contemplated hereby (including without  limitation Assignment and Assumptions, amendments or other Borrowing Requests, waivers and consents)  shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract  formations on electronic platforms approved by the Administrative Agent, or the keeping of records in  electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually  executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and  as provided for in any applicable law, including the Federal Electronic Signatures in Global and National  Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws  based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein  to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in  any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures  approved by it; provided, further, that electronic signatures from Lenders (including assignees) delivered  pursuant to procedures in effect on the site maintained by the Administrative Agent with respect to the  Credit Facilities as of the Effective Date shall be acceptable to the Administrative Agent. For the avoidance  of doubt, delivery of an executed counterpart of a signature page by facsimile or other electronic imaging  means (e.g. “.pdf” or “.tif”) shall be effective as delivery of a manually executed counterpart, and shall not  be considered an electronic signature.  SECTION 9.20 Other Agents and Arrangers.  None of the Lenders or other Persons identified  on the facing page or signature pages of this Agreement as a “syndication agent,” “documentation agent”,  “joint lead arranger,” or “joint bookrunner” shall have any right, power, obligation, liability, responsibility  or duty under this Agreement other than those applicable to all Lenders as such.  Without limiting the  foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary  relationship with any Lender.  Each Lender acknowledges that it has not relied, and will not rely, on any of  the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking  action hereunder.  





 






212  SECTION 9.21 Certain ERISA Matters.    (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such  Person ceases being a Lender party hereto, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of  ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments or this Agreement,  (ii) the prohibited transaction exemption set forth in one or more PTEs, such as PTE  84-14 (a class exemption for certain transactions determined by independent qualified professional  asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance  company general accounts), PTE 90-1 (a class exemption for certain transactions involving  insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain  transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for  certain transactions determined by in-house asset managers), is applicable so as to exempt from the  prohibitions of ERISA Section 406 and Code Section 4975 such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement,   (iii) (A) such Lender is an investment fund managed by a “Qualified Professional  Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional  Asset Manager made the investment decision on behalf of such Lender to enter into, participate in,  administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C)  the entrance into, participation in, administration of and performance of the Loans, the Letters of  Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through  (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of  subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in writing  between the Administrative Agent, Borrower, and such Lender.  (b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true  with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in  accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents  and warrants, as of the date such Person became a Lender party hereto, to, and (y) acknowledges, from the  date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto,  for the benefit of the Administrative Agent and the Joint Lead Arrangers and not, for the avoidance of  doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent,  the Joint Lead Arrangers or any of their respective Affiliates (A) is or will be a fiduciary with respect to the  assets of such Lender involved in such Lender’s entrance into, participation in, administration of and  performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in  connection with the reservation or exercise of any rights by the Administrative Agent or the Joint Lead  Arrangers under this Agreement, any Loan Document or any documents related hereto or thereto) or (B) is  undertaking to provide investment advice to such Lender in connection with the transactions contemplated  hereby.  





 






213  SECTION 9.22 Acknowledgment Regarding Any Supported QFCs.   (a) To the extent that the Loan Documents provide support, through a guarantee or otherwise,  for Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit  Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with  respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together  with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such  Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the  Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of  New York and/or of the United States or any other state of the United States).  (b) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported  QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported  QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC  Credit Support) from such Covered Party will be effective to the same extent as the transfer would be  effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support  (and any such interest, obligation and rights in property) were governed by the laws of the United States or  a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes  subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents  that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be  exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were  governed by the laws of the United States or a state of the United States.  Without limitation of the  foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting  Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any  QFC Credit Support.  SECTION 9.23 Consummation of Merger.  It is understood that notwithstanding the execution  and delivery of signature pages by Norvax with respect to this Agreement and the other Loan Documents  prior to the effectiveness of the Merger, Norvax shall not be deemed to be a party to this Agreement or any  other Loan Document until the consummation of the Merger.  Upon consummation of the Merger, this  Section 9.23 shall be of no further force or effect.        [Remainder of page intentionally left blank; signature pages follow]  





 






            





 






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