creditagreement







Execution Version   55802528_20   CREDIT AGREEMENT1   2   dated as of May 2, 20163   among4   5   MERCURY SYSTEMS, INC.,6   as the Borrower7   8   and9   10   CERTAIN SUBSIDIARIES OF THE BORROWER,11   as Guarantors,12   13   THE LENDERS PARTY HERETO,14   15   BANK OF AMERICA, N.A.,16   as Administrative Agent and Collateral Agent17   18   19   20   21   MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,22   CITIBANK, N.A.,23   KEYBANC CAPITAL MARKETS INC. and24   SUNTRUST ROBINSON HUMPHREY, INC.,25   as Joint Lead Arrangers and Joint Book Managers,26   27   and28   29   TD BANK, N.A.,30   U.S. BANK NATIONAL ASSOCIATION and31   WELLS FARGO BANK, N.A.,32   as Co-Documentation Agents33   34   35    





 







i   55802528_20   TABLE OF CONTENTS36   37   PAGE38   ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS ......................................................................... 139   Section 1.01. Defined Terms....................................................................................................... 140   Section 1.02. Interpretive Provisions ........................................................................................ 5541   Section 1.03. Accounting Terms and Provisions ...................................................................... 5642   Section 1.04. Rounding ............................................................................................................. 5743   Section 1.05. Times of Day....................................................................................................... 5744   Section 1.06. Letter of Credit Amounts .................................................................................... 5745   Section 1.07. Pro Forma Calculations ....................................................................................... 5746   Section 1.08. Timing of Payment and Performance.................................................................. 6147   Section 1.09. Currency Generally ............................................................................................. 6148   Section 1.10. Exchange Rates; Currency Equivalents .............................................................. 6149   Section 1.11. Additional Alternative Currencies....................................................................... 6150   Section 1.12. Cumulative Equity Credit Transactions. ............................................................. 6151   Section 1.13. References to Agreements, Laws, Etc. ............................................................. 6152   53   ARTICLE 2 COMMITMENTS AND CREDIT EXTENSIONS ................................................................... 6254   Section 2.01. Commitments ...................................................................................................... 6255   Section 2.02. Borrowings, Conversions and Continuations...................................................... 6456   Section 2.03. Additional Provisions with Respect to Letters of Credit..................................... 6557   Section 2.04. Additional Provisions with Respect to Swingline Loans .................................... 7558   Section 2.05. Repayment of Loans Term Loans ....................................................................... 7859   Section 2.06. Prepayments ........................................................................................................ 7960   Section 2.07. Termination or Reduction of Commitments ....................................................... 8261   Section 2.08. Interest ................................................................................................................. 8362   Section 2.09. Fees...................................................................................................................... 8463   Section 2.10. Computation of Interest and Fees; Retroactive Adjustments to Applicable64   Percentage ........................................................................................................... 8665   Section 2.11. Payments Generally; Administrative Agent’s Clawback.................................... 8766   Section 2.12. Sharing of Payments by Lenders......................................................................... 8967   Section 2.13. Evidence of Debt ................................................................................................. 8968   Section 2.14. [Reserved] ........................................................................................................... 9069   Section 2.15. [Reserved] ........................................................................................................... 9070   Section 2.16. Cash Collateral .................................................................................................... 9071   Section 2.17. Defaulting Lenders .............................................................................................. 9172   Section 2.18. Incremental Facilities .......................................................................................... 9373   (a) Incremental Commitments .................................................................................. 9374   Section 2.19. Amend and Extend Transactions......................................................................... 9975   Section 2.20. Refinancing Facilities........................................................................................ 10076    





 







ii   55802528_20   ARTICLE 3 TAXES, YIELD PROTECTION AND ILLEGALITY ............................................................ 10477   Section 3.01. Taxes ................................................................................................................. 10478   Section 3.02. Illegality............................................................................................................. 11079   Section 3.03. Inability to Determine Rates.............................................................................. 11180   Section 3.04. Increased Cost; Capital Adequacy .................................................................... 11181   Section 3.05. Compensation for Losses .................................................................................. 11382   Section 3.06. Mitigation Obligations; Replacement of Lenders ............................................. 11483   Section 3.07. Survival Losses.................................................................................................. 11584   ARTICLE 4 GUARANTY................................................................................................................. 11585   Section 4.01. The Guaranty..................................................................................................... 11586   Section 4.02. Obligations Unconditional ................................................................................ 11687   Section 4.03. Reinstatement .................................................................................................... 11688   Section 4.04. Certain Waivers................................................................................................. 11789   Section 4.05. Remedies ........................................................................................................... 11790   Section 4.06. Rights of Contribution....................................................................................... 11791   Section 4.07. Guaranty of Payment; Continuing Guarantee ................................................... 11892   Section 4.08. Keepwell............................................................................................................ 11893   Section 4.09. Release of Guarantors ....................................................................................... 11894   ARTICLE 5 CONDITIONS PRECEDENT TO CREDIT EXTENSIONS .................................................... 11995   Section 5.01. Conditions to the Closing Date ......................................................................... 11996   Section 5.02. Conditions to all Credit Extensions after the Closing Date............................... 12297   ARTICLE 6 REPRESENTATIONS AND WARRANTIES ....................................................................... 12398   Section 6.01. Existence, Qualification and Power .................................................................. 12399   Section 6.02. Authorization; No Contravention...................................................................... 123100   Section 6.03. Governmental Authorization; Other Consents .................................................. 123101   Section 6.04. Binding Effect ................................................................................................... 124102   Section 6.05. Financial Statements.......................................................................................... 124103   Section 6.06. No Material Adverse Effect .............................................................................. 124104   Section 6.07. Litigation ........................................................................................................... 124105   Section 6.08. Labor Matters .................................................................................................... 124106   Section 6.09. Ownership of Property; Liens ........................................................................... 124107   Section 6.10. Environmental Matters ...................................................................................... 125108   Section 6.11. [Reserved] ......................................................................................................... 125109   Section 6.12. Taxes ................................................................................................................. 125110   Section 6.13. ERISA Compliance ........................................................................................... 125111   Section 6.14. Subsidiaries ....................................................................................................... 126112   Section 6.15. Margin Regulations; Investment Company Act ................................................ 126113   Section 6.16. Disclosure.......................................................................................................... 127114   Section 6.17. Compliance with Laws...................................................................................... 127115   Section 6.18. Collateral Documents ........................................................................................ 127116    





 







iii   55802528_20   Section 6.19. Intellectual Property .......................................................................................... 128117   Section 6.20. Solvency ............................................................................................................ 128118   Section 6.21. Patriot Act; Sanctioned Persons ........................................................................ 128119   Section 6.22. EEA Financial Institutions ................................................................................ 129120   ARTICLE 7 AFFIRMATIVE COVENANTS ........................................................................................ 129121   Section 7.01. Financial Statements.......................................................................................... 129122   Section 7.02. Certificates; Other Information ......................................................................... 130123   Section 7.03. Notification........................................................................................................ 132124   Section 7.04. Payment of Taxes .............................................................................................. 132125   Section 7.05. Preservation of Existence, Etc........................................................................... 132126   Section 7.06. Maintenance of Properties................................................................................. 133127   Section 7.07. Maintenance of Insurance ................................................................................. 133128   Section 7.08. Compliance with Laws; Environmental Laws .................................................. 133129   Section 7.09. Books and Records ............................................................................................ 134130   Section 7.10. Inspection Rights ............................................................................................... 134131   Section 7.11. Use of Proceeds ................................................................................................. 135132   Section 7.12. Joinder of Subsidiaries as Guarantors ............................................................... 135133   Section 7.13. Further Assurances ............................................................................................ 137134   Section 7.14. Designation of Subsidiaries............................................................................... 137135   Section 7.15. Post-Closing Obligations................................................................................... 137136   ARTICLE 8 NEGATIVE COVENANTS.............................................................................................. 137137   Section 8.01. Liens .................................................................................................................. 138138   Section 8.02. Investments........................................................................................................ 141139   Section 8.03. Indebtedness ...................................................................................................... 144140   Section 8.04. Mergers and Dissolutions.................................................................................. 148141   Section 8.05. Dispositions ....................................................................................................... 150142   Section 8.06. Restricted Payments .......................................................................................... 151143   Section 8.07. Change in Nature of Business ........................................................................... 153144   Section 8.08. Change in Fiscal Year ....................................................................................... 153145   Section 8.09. Transactions with Affiliates .............................................................................. 153146   Section 8.10. [Reserved] ......................................................................................................... 154147   Section 8.11. Financial Covenants .......................................................................................... 154148   Section 8.12. Prepayments etc. of Indebtedness ..................................................................... 154149   Section 8.13. Burdensome Agreements .................................................................................. 155150   ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES......................................................................... 156151   Section 9.01. Events of Default............................................................................................... 156152   Section 9.02. Remedies Upon Event of Default...................................................................... 158153   Section 9.03. Application of Funds ......................................................................................... 159154   ARTICLE 10 ADMINISTRATIVE AGENT ......................................................................................... 160155   Section 10.01. Appointment and Authorization of Administrative Agent................................ 160156    





 







iv   55802528_20   Section 10.02. Rights as a Lender ............................................................................................. 161157   Section 10.03. Exculpatory Provisions...................................................................................... 161158   Section 10.04. Reliance by Administrative Agent .................................................................... 162159   Section 10.05. Delegation of Duties.......................................................................................... 162160   Section 10.06. Resignation of the Administrative Agent .......................................................... 163161   Section 10.07. Non-Reliance on Administrative Agent and Other Lenders ............................. 164162   Section 10.08. No Other Duties................................................................................................. 164163   Section 10.09. Administrative Agent May File Proofs of Claim; Credit Bidding .................... 164164   Section 10.10. Collateral and Guaranty Matters ....................................................................... 166165   Section 10.11. Swap Contracts and Treasury Management Agreements.................................. 166166   ARTICLE 11 MISCELLANEOUS...................................................................................................... 167167   Section 11.01. Amendments, Etc .............................................................................................. 167168   Section 11.02. Notices; Effectiveness; Electronic Communications ........................................ 171169   Section 11.03. No Waiver; Cumulative Remedies; Enforcement ............................................. 173170   Section 11.04. Expenses; Indemnity; Damage Waiver ............................................................. 174171   Section 11.05. Payments Set Aside ........................................................................................... 176172   Section 11.06. Successors and Assigns ..................................................................................... 176173   Section 11.07. Treatment of Certain Information; Confidentiality ........................................... 184174   Section 11.08. Right of Setoff ................................................................................................... 185175   Section 11.09. Interest Rate Limitation..................................................................................... 185176   Section 11.10. Counterparts; Integration................................................................................... 185177   Section 11.11. Survival of Representations and Warranties ..................................................... 186178   Section 11.12. Severability........................................................................................................ 186179   Section 11.13. Replacement of Lenders .................................................................................... 186180   Section 11.14. Governing Law; Jurisdiction; Etc...................................................................... 187181   Section 11.15. Waiver of Jury Trial .......................................................................................... 188182   Section 11.16. USA Patriot Act Notice..................................................................................... 189183   Section 11.17. Termination ....................................................................................................... 189184   Section 11.18. No Advisory or Fiduciary Responsibility ......................................................... 189185   Section 11.19. Electronic Execution ......................................................................................... 190186   Section 11.20. Acknowledgment and Consent to Bail-In of EEA Financial Institutions ......... 190187   188    





 







v   55802528_20   SCHEDULES189   Schedule I Guarantors   Schedule 2.01 Lenders and Commitments   Schedule 2.03 Existing Letters of Credit   Schedule 6.14 Subsidiaries   Schedule 7.15 Post-Closing Obligations   Schedule 8.01 Existing Liens   Schedule 8.02 Existing Investments   Schedule 8.03 Existing Indebtedness   Schedule 8.09 Transactions with Affiliates   Schedule 8.13 Burdensome Agreements   Schedule 11.02 Notice Addresses   EXHIBITS190   Exhibit 1.01-1 Form of Perfection Certificate   Exhibit 1.01-2 Form of Security Agreement   Exhibit 1.01-3 Form of Intercompany Note   Exhibit 2.02 Form of Loan Notice   Exhibit 2.13-1 Form of Revolving Credit Note   Exhibit 2.13-2 Form of Swingline Note   Exhibit 2.13-3 Form of Term Note   Exhibit 5.01(j) Form of Solvency Certificate   Exhibit 7.02(a) Form of Compliance Certificate   Exhibit 7.12 Form of Joinder Agreement   Exhibit 11.06(b) Form of Assignment and Assumption   Exhibit 11.06(i) Dutch Auction Procedures    





 







55802528_20   CREDIT AGREEMENT191   This CREDIT AGREEMENT (the “Credit Agreement” or the “Agreement”) is entered192   into as of May 2, 2016, among MERCURY SYSTEMS, INC., a Massachusetts corporation (the193   “Borrower”), the Guarantors identified herein, each lender from time to time party hereto194   (collectively, the “Lenders” and individually, a “Lender”) and BANK OF AMERICA, N.A., as195   Administrative Agent, Collateral Agent, Swingline Lender and L/C Issuer.196   PRELIMINARY STATEMENTS197   The Borrower intends to acquire Microsemi LLC – RF Integrated Solutions, a Delaware198   limited liability company (the “Target”);199   Pursuant to the Stock Purchase Agreement, dated as of March 23, 2016 (as amended,200   restated, supplemented or otherwise modified from time to time, the “Acquisition Agreement”)201   among the Borrower and Microsemi Corporation, the Borrower has agreed to acquire all of the202   Capital Stock of the Target (the “Microsemi Acquisition”);203   The Borrower has requested that, substantially simultaneously with the consummation of204   the Microsemi Acquisition, the Lenders extend credit to the Borrower in the form of (i) a term A205   loan facility on the Closing Date (as this and other capitalized terms used in these preliminary206   statements are defined in Section 1.01 below) in an aggregate principal amount of $200,000,000207   and (ii) a revolving credit facility with an initial aggregate principal amount of commitments of208   $100,000,000. The revolving credit facility will permit the issuance of one or more Letters of209   Credit from time to time and the making of one or more Revolving Credit Loans and/or210   Swingline Loans from time to time.211   The proceeds of the term A loan facility funded on the Closing Date, together with the212   proceeds of (i) Revolving Credit Loans made on the Closing Date, (iii) the Pre-Closing Equity213   Offering and (iv) solely at the option of the Borrower, cash on the balance sheet, in each case,214   will be used by the Borrower to (1) consummate the Refinancing, (2) finance the Microsemi215   Acquisition and (3) pay Transaction Expenses in connection with the foregoing.216   The Lenders have indicated their willingness to lend and the L/C Issuer has indicated its217   willingness to issue letters of credit, in each case, on the terms and subject to the conditions set218   forth herein.219   In consideration of these premises and the mutual covenants and agreements contained220   herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto221   covenant and agree as follows:222   ARTICLE 1223   DEFINITIONS AND ACCOUNTING TERMS224   Section 1.01. Defined Terms.225   As used in this Credit Agreement, the following terms have the meanings provided below:226    





 







2   55802528_20   “Acquired Indebtedness” means, with respect to any specified Person,227   (a) Indebtedness of any other Person existing at the time such other Person is228   merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of229   such specified Person, including Indebtedness incurred in connection with, or in230   contemplation of, such other Person merging, amalgamating or consolidating with or231   into, or becoming a Restricted Subsidiary of, such specified Person; and232   (b) Indebtedness secured by a Lien encumbering any asset acquired by such233   specified Person.234   “Acquisition” means the purchase or acquisition by any Person of (a) more than 50% of235   the Capital Stock with ordinary voting power of another Person (including as a result of the236   purchase by such Person of Capital Stock of an existing joint venture to the extent that after237   giving effect thereto, such Person owns more than 50% of such Capital Stock) or (b) all or any238   substantial portion of the property (other than Capital Stock) of, or a business unit, a line of239   business or division of, another Person, whether or not involving a merger or consolidation with240   such Person.241   “Acquisition Agreement” has the meaning provided in the preliminary statements hereto.242   “Acquisition Agreement Representations” means the representations made by or with243   respect to the Target and its Subsidiaries in the Acquisition Agreement as are material to the244   interests of the Lenders, but only to the extent that the Borrower has (or its applicable affiliate245   has) the right (taking into account any applicable cure provisions), pursuant to the Acquisition246   Agreement, to terminate its obligations under the Acquisition Agreement to consummate the247   Microsemi Acquisition (or the right not to consummate the Microsemi Acquisition pursuant to248   the Acquisition Agreement) as a result of a breach of such representations and warranties.249   “Act” has the meaning provided in Section 11.16.250   “Additional Lender” means, at any time, any Person that is not an existing Lender and251   that agrees to provide any portion of any (a) Incremental Loans or Incremental Commitments252   pursuant to an Incremental Amendment in accordance with Section 2.18 or (b) Refinancing253   Facilities pursuant to a Refinancing Amendment in accordance with Section 2.20; provided that254   such Additional Lender shall be (x) with respect to Incremental Term Loans, Incremental Term255   Commitments or Refinancing Term Loans, an Eligible Assignee with respect to Term Loans and256   (y) with respect to Incremental Revolving Commitments or Refinancing Revolving257   Commitments, an Eligible Assignee with respect to Revolving Credit Commitments.258   “Adequate Assurance” means (i) with respect to L/C Obligations, such assurance as the259   L/C Issuer may reasonably require, and (ii) with respect to Swingline Loans, such assurance as260   the Swingline Lender may reasonably require, in each case, that any Defaulting Lender will be261   capable of honoring its obligations to fund its portion of L/C Obligations and Swingline Loans,262   as appropriate, and participation interests therein, including existing and future obligations263   hereunder and under the other Credit Documents. Adequate Assurance may be in the form of264   cash collateral, posting of letters of credit or other arrangement, in each case in form, amount and265    





 







3   55802528_20   other respects reasonable satisfactory to the L/C Issuer or the Swingline Lender, as applicable, in266   their discretion.267   “Administrative Agent” means Bank of America in its capacity as administrative agent268   under any of the Credit Documents, or any successor administrative agent.269   “Administrative Agent’s Office” means the Administrative Agent’s address and, as270   appropriate, account as set forth on Schedule 11.02 (as may be updated from time to time), or271   such other address or account as the Administrative Agent may from time to time notify the272   Borrower and the Lenders.273   “Administrative Questionnaire” means an administrative questionnaire for the Lenders274   in a form supplied by the Administrative Agent.275   “Affiliate” means, with respect to any Person, another Person that directly, or indirectly276   through one or more intermediaries, Controls or is Controlled by or is under common Control277   with the Person specified.278   “Agents” means, collectively, the Administrative Agent, the Collateral Agent and the279   Arrangers.280   “Agent-Related Distress Event” means, with respect to the Administrative Agent or any281   Person that directly or indirectly Controls the Administrative Agent (each, a “Distressed Agent-282   Related Person”), a voluntary or involuntary case with respect to such Distressed Agent-Related283   Person under any Debtor Relief Law, or a custodian, conservator, receiver or similar official is284   appointed for such Distressed Agent-Related Person or any substantial part of such Distressed285   Agent-Related Person’s assets, or such Distressed Agent-Related Person makes a general286   assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any287   Governmental Authority having regulatory authority over such Distressed Agent-Related Person288   to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not be deemed289   to have occurred solely by virtue of the ownership or acquisition of any Capital Stock in the290   Administrative Agent or any Person that directly or indirectly Controls the Administrative Agent291   by a Governmental Authority or an instrumentality thereof.292   “Aggregate Commitment Percentage” means (a) in respect of the Term Loan Facility,293   with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal294   place) of the Term Loan Facility represented by (i) on or prior to the Closing Date, such Term295   Lender’s Term Commitment at such time and (ii) thereafter, the principal amount of such Term296   Lender’s Term Loans at such time, and (b) in respect of the Revolving Credit Facility, with297   respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth298   decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s299   Revolving Credit Commitment at such time. If the Revolving Credit Commitments have been300   terminated pursuant to Section 9.02 or have expired, then the Aggregate Commitment Percentage301   of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be determined302   based on the Aggregate Commitment Percentage of such Revolving Credit Lender in respect of303   the Revolving Credit Facility most recently in effect, giving effect to any subsequent304   assignments. The initial Aggregate Commitment Percentage of each Lender, as of the Closing305    





 







4   55802528_20   Date, in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01306   or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as307   applicable.308   “Aggregate Commitments” means the Commitments of all Lenders.309   “Aggregate Revolving Credit Commitments” means the Revolving Credit310   Commitments of all Revolving Credit Lenders.311   “Aggregate Revolving Credit Committed Amount” has the meaning provided in312   Section 2.01(b).313   “Agreement” has the meaning provided in the introductory paragraph hereto.314   “Agreement Currency” has the meaning specified in Section 11.21.315   316   “Alternative Currency” means Canadian Dollars, Euros, Francs, Sterling, Rupees and317   Yen, together with each other currency (other than Dollars) that is approved in accordance with318   Section 1.11.319   “Alternative Currency Equivalent” means, at any time, with respect to any amount320   denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as321   determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on322   the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the323   purchase of such Alternative Currency with Dollars.324   “Annual Financial Statements” has the meaning specified in the definition of Historical325   Financial Statements.326   “Applicable Percentage” means in respect of the Revolving Credit Facility or the Term327   Loan Facility, the following percentages per annum, based on the Consolidated Total Net328   Leverage Ratio as set forth in the most recent Compliance Certificate received by the329   Administrative Agent pursuant to Section 7.02(a); provided that from the Closing Date until the330   receipt by the Administrative Agent of the Compliance Certificate with respect to the first full331   fiscal quarter of the Borrower following the Closing Date, Pricing Level I shall apply to the332   Revolving Credit Loans, the Term Loans, the Letter of Credit Fee and the Commitment Fee:333   Applicable   Percentage for   Pricing   Level   Consolidated Total   Net Leverage Ratio   Eurocurrency   Rate Loans   Base   Rate   Loans   Letter   of   Credit   Fee   Commitment   Fee   I Less than or equal to   2.00:1.00 ................................ 2.00% 1.00% 2.00% 0.300%    





 







5   55802528_20   Applicable   Percentage for   Pricing   Level   Consolidated Total   Net Leverage Ratio   Eurocurrency   Rate Loans   Base   Rate   Loans   Letter   of   Credit   Fee   Commitment   Fee   II Greater than 2.00:1.00 but   less than or equal to   2.50:1.00 ................................ 2.50% 1.50% 2.50% 0.400%   III Greater than 2.50:1.00 ....................3.00% 2.00% 3.00% 0.500%   334   Any increase or decrease in the Applicable Percentage resulting from a change in the335   Consolidated Total Net Leverage Ratio shall become effective on the date a Compliance336   Certificate is delivered pursuant to Section 7.02(a); provided, however, that if (i) a Compliance337   Certificate is not delivered when due in accordance therewith, then Pricing Level III shall apply338   as of the first Business Day after the date on which such Compliance Certificate was required to339   have been delivered until the first Business Day after the date on which such Compliance340   Certificate was delivered and (ii) at the option of the Administrative Agent or the Required341   Lenders, as of the first Business Day after (x) in the case of an Event of Default under Section342   9.01(a) that has occurred and is continuing, the delivery of written notice to the Borrower or (y)343   in the case of an Event of Default under Section 9.01(f) that has occurred and is continuing, the344   date such Event of Default shall have occurred, then in either case Pricing Level III shall apply,345   and shall continue to so apply to but excluding the date on which such Event of Default is cured,346   waived or no longer continuing (and thereafter the Pricing Level otherwise determined in347   accordance with this definition shall apply).348   Notwithstanding the foregoing, (v) the Applicable Percentage in respect of any Class of349   Extended Revolving Commitments or any Extended Term Loans or Revolving Credit Loans or350   Swingline Loan made pursuant to any Extended Revolving Commitments shall be the applicable351   percentages per annum set forth in the relevant Extension Amendment, (w) the Applicable352   Percentage in respect of any Class of Incremental Commitments, and Class of Incremental Term353   Loans or any Class of Incremental Revolving Loans shall be the applicable percentages per354   annum set forth in the relevant Incremental Amendment, (x) the Applicable Percentage in respect355   of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth356   in the relevant agreement, (y) the Applicable Percentage in respect of any Class of Refinancing357   Revolving Commitments, any Class of Refinancing Revolving Loans or any Class of358   Refinancing Term Loans shall be the applicable percentages per annum set forth in the relevant359   Refinancing Amendment and (z) in the case of the Term Loans and any Class of Incremental360   Term Loans, the Applicable Percentage shall be increased as, and to the extent, necessary to361   comply with the provisions of Section 2.18.362   “Applicable Time” means, with respect to any payments in any Alternative Currency,363   the local time in the place of settlement for such Alternative Currency as may be reasonably364   determined by the L/C Issuer and notified to the Borrower at the time such Letter of Credit is365   issued to be necessary for timely settlement on the relevant date in accordance with normal366   banking procedures in the place of payment.367    





 







6   55802528_20   “Appropriate Lender” means, at any time, (a) with respect to either the Term Loan368   Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such369   Facility or holds a Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with370   respect to the L/C Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued371   pursuant to Section 2.03(a)., the Revolving Credit Lenders and (c) with respect to the Swingline372   Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to373   Section 2.04(a), the Revolving Credit Lenders.374   “Approved Bank” means (a) any Lender, (b) any domestic commercial bank of375   recognized standing having combined capital and surplus in excess of $250,000,000 or any376   foreign bank of recognized standing having capital and surplus in excess of $100,000,000 (or the377   Dollar Equivalent as of the date of determination) or (c) any bank whose short-term commercial378   paper rating from S&P is at least A-2 or the equivalent thereof or from Moody’s is at least P-2 or379   the equivalent thereof.380   “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b)381   an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a382   Lender.383   “Arrangers” means MLPF&S (or any other registered broker-dealer wholly-owned by384   Bank of America Corporation to which all or substantially all of Bank of America Corporation’s385   or any of its subsidiaries’ investment banking, commercial lending services or related businesses386   may be transferred following the date of this Agreement), Citibank, N.A., KeyBanc Capital387   Markets Inc. and SunTrust Robinson Humphrey, Inc., in their respective capacities as joint lead388   arrangers and joint book managers.389   “Assignees” has the meaning set forth in Section 11.06(b).390   “Assignee Group” means two or more Eligible Assignees that are Affiliates of one391   another or two or more Approved Funds managed by the same investment advisor.392   “Assignment and Assumption” means an assignment and assumption entered into by a393   Lender and an Eligible Assignee (with the consent of any party whose consent is required by394   Section 11.06 and accepted by the Administrative Agent), in substantially the form of Exhibit395   11.06(b) or any other form approved by the Administrative Agent.396   “Attributable Indebtedness” means, subject to the second sentence of Section 1.03(a),397   on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof398   that would appear on a balance sheet of such Person prepared as of such date in accordance with399   GAAP.400   “Auction” has the meaning provided in Section 11.06(i).401   “Auction Manager” means the Administrative Agent.402   “Auction Procedures” means the Dutch Auction Procedures set forth on Exhibit 11.06(i).403    





 







7   55802528_20   “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the404   applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.405   “Bail-In Legislation” means, with respect to any EEA Member Country implementing406   Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the407   European Union, the implementing law for such EEA Member Country from time to time which408   is described in the EU Bail-In Legislation Schedule.409   “Bank of America” means Bank of America, N.A., together with its successors.410   “Base Rate” means for any day a fluctuating rate per annum equal to the highest of411   (a) the Federal Funds Rate plus one-half of one percent (0.5%), (b) the Prime Rate and (c) except412   during a Eurocurrency Unavailability Period, the Eurocurrency Rate plus one percent (1.00%)413   and if the Base Rate shall be less than 0%, such rate shall be deemed to be 0% for purposes of414   this Agreement.415   “Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest416   based on the Base Rate.417   “Borrower” has the meaning provided in the introductory paragraph hereto.418   “Borrower Notice” has the meaning provided in the definition of Real Estate Collateral419   Requirements.420   “Borrowing” means a Revolving Credit Borrowing, a Swingline Borrowing or a Term421   Borrowing, as the context may require.422   “Business Day” means any day other than a Saturday, Sunday or other day on which423   commercial banks are authorized to close under the Laws of, or are in fact closed in, the State424   where the Administrative Agent’s office is located, and, if such day relates to any interest rate425   settings as to a Eurocurrency Rate Loan, any fundings, disbursements, settlements and payments426   in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant427   to this Credit Agreement in respect of any such Eurocurrency Rate Loan, means any such day on428   which dealings in deposits in Dollars are conducted by and between banks in the London429   interbank eurodollar market.430   “Canadian Dollars” means the lawful currency of Canada.431   “Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an432   association or business entity, any and all shares, interests, participations, rights or other433   equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership434   interests (whether general or limited), (d) in the case of a limited liability company, membership435   interests and (e) any other interest or participation that confers on a Person the right to receive a436   share of the profits and losses of, or distributions of assets of, the issuing Person.437   “Capitalized Leases” means, subject to the second sentence of the first paragraph of438   Section 1.03, all leases that have been or should be, in accordance with GAAP, recorded as439   capitalized leases.440    





 







8   55802528_20   “Capitalized Software Expenditures” means, for any period, the aggregate of all441   expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the Restricted442   Subsidiaries during such period in respect of purchased software or internally developed443   software and software enhancements that, in conformity with GAAP, are or are required to be444   reflected as capitalized costs on the consolidated balance sheet of the Borrower and the445   Restricted Subsidiaries.446   “Cash Collateral” has the meaning provided in the definition of Cash Collateralize.447   “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative448   Agent, for the benefit of the Administrative Agent, the L/C Issuer or the Swingline Lender (as449   applicable) and the Revolving Credit Lenders, as collateral for L/C Obligations, Obligations in450   respect of Swingline Loans, or obligations of Revolving Credit Lenders to fund participations in451   respect of either thereof (as the context may require), cash or deposit account balances or, if the452   L/C Issuer or the Swingline Lender benefitting from such collateral shall agree in its sole453   discretion, other credit support (“Cash Collateral”), in each case pursuant to documentation in454   form and substance reasonable satisfactory to (a) the Administrative Agent and (b) the L/C Issuer455   or the Swingline Lender (as applicable). Derivatives of such term have corresponding meanings.456   “Cash Equivalents” means to the extent owned by the Borrower or any Restricted457   Subsidiary: (a) securities issued or directly and fully guaranteed or insured by the United States458   or any agency or instrumentality thereof (provided that the full faith and credit of the United459   States is pledged in support thereof) having maturities of not more than twenty four (24) months460   from the date of acquisition, (b) time deposits or eurodollar time deposits with, insured461   certificates of deposit, bankers’ acceptances or overnight bank deposits of, or letters of credit462   issued by, any Approved Bank, in each case with maturities of not more than twenty four (24)463   months from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued464   by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by,465   or guaranteed by, any domestic corporation rated A-2 (or the equivalent thereof) or better by466   S&P or P-2 (or the equivalent thereof) or better by Moody’s, and maturing within twelve months467   of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or468   trust company (including any of the Lenders) or recognized securities dealer having capital and469   surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed by the470   United States in which such Person shall have a perfected first priority security interest (subject471   to no other Liens) and having, on the date of purchase thereof, a fair market value of at least one472   hundred percent (100%) of the amount of the repurchase obligations, (e) Investments (classified473   in accordance with GAAP as current assets) in money market investment programs registered474   under the Investment Company Act of 1940 that are administered by reputable financial475   institutions having capital of at least $250,000,000 and the portfolios of which are limited to476   Investments of the character described in the foregoing subclauses hereof, (f) securities with477   average maturities of twenty four (24) months or less from the date of acquisition issued or fully478   guaranteed (1) by any state, commonwealth or territory of the United States, by any political479   subdivision or taxing authority of any such state, commonwealth or territory or by (2) any480   foreign government, in each case, having an investment grade rating from either S&P or481   Moody’s (or the equivalent thereof), (g) Investments (other than in structured investment482   vehicles and structured financing transactions) with average maturities of twelve (12) months or483   less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof)484    





 







9   55802528_20   or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s, (h) other short-term485   investments utilized by Foreign Subsidiaries in accordance with normal investment practices for486   cash management in investments of a type analogous to the foregoing and local currencies held487   by them from time to time in the ordinary course of business and not for speculation, (i)488   securities with maturities of twelve (12) months or less from the date of acquisition backed by489   standby letters of credit issued by an Approved Bank and (j) investment funds investing at least490   90% of their assets in securities of the types described in clauses (a) through (i) above.491   “CFC” means a “controlled foreign corporation” within the meaning of Section 957 of492   the Code.493   “CFC Holdco” means any Domestic Subsidiary that has no material assets other than494   Capital Stock (or Capital Stock and indebtedness) of one or more Foreign Subsidiaries that are495   CFCs or any other Domestic Subsidiary that itself is a CFC Holdco.496   “Change in Law” means the occurrence, after the Closing Date, of any of the following:497   (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law,498   rule, regulation or treaty or in the administration, interpretation, implementation or application499   thereof by any Governmental Authority or (c) the making or issuance of any request, rule,500   guideline or directive (whether or not having the force of law) by any Governmental Authority;501   provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street502   Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder503   or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated504   by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any505   successor or similar authority) or the United States or foreign regulatory authorities, in each case506   pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the507   date enacted, adopted or issued; provided that a Lender shall be entitled to compensation with508   respect to any such adoption taking effect, making or issuance becoming effective after the date509   of this Agreement only if it is the applicable Lender’s general policy or practice to demand510   compensation in similar circumstances under comparable provisions of other financing511   agreements.512   “Change of Control” means the occurrence of any of the following:513   (a) any person or persons constituting a “group” (as such term is used in514   Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, but515   excluding any employee benefit plan of such person and its subsidiaries, and any person516   or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any517   such plan), becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5518   under such Act), directly or indirectly, of equity interests representing more than thirty-519   five (35%) of the aggregate ordinary voting power represented by the issued and520   outstanding equity interests of the Borrower;521   (b) the first day on which a majority of the members of the Board of Directors522   of the Borrower are not Continuing Directors; or523    





 







10   55802528_20   (c) a “change of control” (or similar event) shall occur in any document524   pertaining to the Incremental Equivalent Debt, Refinancing Equivalent Debt, Ratio Debt525   or any refinancing thereof; provided that such debt is in an aggregate outstanding526   principal amount in excess of $15,000,000.527   “Class” means (i) with respect to Commitments or Loans, those of such Commitments or528   Loans that have the same terms and conditions (without regard to differences in the Type of529   Loan, Interest Period, upfront fees, OID or similar fees paid or payable in connection with such530   Commitments or Loans, or differences in tax treatment (e.g., “fungibility”)); provided that such531   Commitments or Loans may be designated in writing by the Borrower and Lenders holding such532   Commitments or Loans as a separate Class from other Commitments or Loans that have the533   same terms and conditions and (ii) with respect to Lenders, those of such Lenders that have534   Commitments or Loans of a particular Class.535   “Closing Date” means May 2, 2016.536   “Collateral” means the collateral identified in, and at any time covered by, the Collateral537   Documents.538   “Collateral Agent” means Bank of America, in its capacity as collateral agent under any539   of the Credit Documents, or any successor collateral agent.540   “Collateral and Guarantee Requirement” means, at any time, the requirement that:541   (a) the Administrative Agent shall have received each Collateral Document542   required to be delivered (i) on the Closing Date, pursuant to Section 5.01(a) and (ii) at543   such time as may be designated therein, pursuant to the Collateral Documents,544   Section 7.12, 7.13 or 7.15, subject, in each case, to the limitations and exceptions of this545   Credit Agreement and the Collateral Documents, duly executed by each Credit Party546   thereto;547   (b) all Obligations (other than, with respect to any Guarantor, any Excluded548   Swap Obligations of such Guarantor) shall have been unconditionally guaranteed by each549   Restricted Subsidiary of the Borrower that is a wholly owned Material Domestic550   Subsidiary (other than any Excluded Subsidiary) including those that are listed on551   Schedule I hereto (each, a “Guarantor”);552   (c) the Obligations and the Guaranty shall have been secured by a first-553   priority security interest (subject to Permitted Liens) in (i) all Capital Stock of each554   Restricted Subsidiary that is a Domestic Subsidiary (other than a Domestic Subsidiary555   described in the following clause (ii)(A)) that is directly owned by the Borrower or any556   Guarantor and (iii) 65% of the issued and outstanding Capital Stock directly owned by557   the Borrower or any Guarantor of (A) each Restricted Subsidiary that is a CFC Holdco558   and (B) each Restricted Subsidiary that is a Foreign Subsidiary;559   (d) except to the extent otherwise provided hereunder, or under any Collateral560   Document, the Obligations and the Guaranty shall, subject to Permitted Liens, have been561   secured by a perfected first-priority security interest (to the extent such security interest562    





 







11   55802528_20   may be perfected by delivering certificated securities or instruments, filing financing563   statements under the Uniform Commercial Code or making any necessary filings with the564   United States Patent and Trademark Office or United States Copyright Office or to the565   extent required in the Security Agreement or this Agreement) in substantially all tangible566   and intangible assets of the Borrower and each Guarantor (including accounts receivable,567   inventory, equipment, investment property, contract rights, applications and registrations568   of intellectual property filed in the United States, other general intangibles, Specified569   Real Property, intercompany notes and proceeds of the foregoing), in each case, with the570   priority required by the Collateral Documents, and in each case subject to exceptions and571   limitations otherwise set forth in this Credit Agreement and the Collateral Documents;572   and573   (e) the Real Estate Collateral Requirements shall have been satisfied;574   provided, however, that the foregoing definition shall not require and the Credit Documents shall575   not contain any requirements as to the creation or perfection of pledges of, security interests in,576   Mortgages on, or the obtaining of title insurance, surveys, abstracts or appraisals or taking other577   actions with respect to any Excluded Property.578   The Administrative Agent may grant extensions of time for the perfection of security579   interests in, or the delivery of the Mortgages and the obtaining of title insurance and surveys with580   respect to, particular assets and the delivery of assets (including extensions beyond the Closing581   Date for the perfection of security interests in the assets of the Credit Parties on such date) where582   it reasonably determines, in consultation with the Borrower, that perfection cannot be583   accomplished without undue effort or expense by the time or times at which it would otherwise584   be required by this Credit Agreement or the Collateral Documents. Notwithstanding any585   provision of any Credit Document to the contrary, if a mortgage tax or any similar tax or charge586   would otherwise be owed on the entire amount of the Obligations evidenced hereby, then the587   amount secured by the applicable Mortgage shall be limited to 100% of the fair market value of588   the Mortgaged Property at the time the Mortgage is entered into if such limitation results in such589   mortgage tax or similar tax or charge being calculated based upon such fair market value.590   No actions in any non-U.S. jurisdiction or required by the Laws of any non-U.S.591   jurisdiction shall be required in order to create any security interests in assets located or titled592   outside of the U.S. or to perfect such security interests, including any intellectual property593   registered in any non-U.S. jurisdiction (it being understood that there shall be no security594   agreements or pledge agreements governed under the Laws of any non-U.S. jurisdiction). No595   actions shall be required with respect to Collateral requiring perfection through control596   agreements or perfection by “control” (as defined in the UCC) (including deposit accounts or597   other bank accounts or securities accounts) or possession, other than in respect of (i) certificated598   Capital Stock of wholly owned Restricted Subsidiaries directly owned by the Borrower or by any599   Guarantor otherwise required to be pledged pursuant to the provisions of clause (c) of this600   definition of “Collateral and Guarantee Requirement” and not otherwise constituting Excluded601   Property and (ii) Pledged Debt (as defined in the Security Agreement) to the extent required to602   be delivered to the Administrative Agent pursuant to the terms of the Security Agreement.603    





 







12   55802528_20   “Collateral Documents” means the Security Agreement, the Intellectual Property604   Security Agreements, the Mortgages and any other documents executed and delivered by the605   Credit Parties in order to grant to the Collateral Agent a security interest in the Collateral as606   security for the Obligations.607   “Commitment” means a Term Commitment or a Revolving Credit Commitment, as the608   context may require.609   “Commitment Fee” has the meaning set forth in Section 2.09(a)(i).610   “Commitment Period” means, in respect of the Revolving Credit Facility, the period611   from and including the Closing Date to the earlier of (a)(i) in the case of Revolving Credit Loans612   and Swingline Loans, the Revolving Termination Date or (ii) in the case of the Letters of Credit,613   the L/C Expiration Date, or (b) the date on which the Revolving Credit Commitments shall have614   been terminated as provided herein.615   “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),616   as amended from time to time, and any successor statute.617   “Compliance Certificate” means a certificate substantially in the form of Exhibit 7.02(a).618   “Connection Income Taxes” means Taxes as described in clause (a)(ii) of “Excluded619   Taxes” that are imposed on or measured by net income (however denominated) or that are620   franchise Taxes or branch profits Taxes.621   “Consolidated Cash Interest Coverage Ratio” means, with respect to any Test Period,622   the ratio of (a) Consolidated EBITDA for such Test Period to (b) Consolidated Interest Expense623   for such Test Period.624   “Consolidated EBITDA” means, for any period, the Consolidated Net Income for such625   period, plus (a) without duplication, and except with respect to clauses (vii) and (ix) below, to626   the extent deducted (and not added back or excluded) in arriving at such Consolidated Net627   Income, the sum of the following amounts for such period with respect to the Borrower and its628   Restricted Subsidiaries:629   (i) total interest expense determined in accordance with GAAP and, to the630   extent not reflected in such total interest expense, any expense or loss on hedging631   obligations or other derivative instruments entered into for the purpose of hedging632   interest rate risk and not for speculative purposes, net of interest income and gains on633   such hedging obligations, and costs of surety bonds in connection with financing634   activities (whether amortized or immediately expensed),635   (ii) provision for taxes based on income, profits or capital gains of the636   Borrower and the Restricted Subsidiaries, including federal, state, local, franchise and637   similar taxes and foreign withholding taxes paid or accrued during such period including638   penalties and interest related to such taxes or arising from any tax examinations and the639   net tax expense associated with any adjustments made pursuant to the definition of640   “Consolidated Net Income,”641    





 







13   55802528_20   (iii) depreciation and amortization (including amortization of intangible assets,642   deferred financing fees and Capitalized Software Expenditures) for such period,643   (iv) [reserved],644   (v) (A) restructuring charges or reserves, severance, relocation costs or645   expenses, integration costs, transition costs, pre-opening, opening, closing and646   consolidation costs for facilities and one-time compensation charges (including signing,647   retention and completion bonuses), other costs relating to the closure of facilities or648   impairment of facilities, costs incurred in connection with acquisitions, other business649   optimization expenses (including costs and expenses relating to business optimization650   programs and new systems design, retention charges, systems establishment costs651   (including information technology systems) and implementation costs), production line652   start-up costs, severance and other restructuring charges representing cash items653   (including restructuring costs related to acquisitions and to closure of facilities, and654   excess pension charges) and (B) earn-out and contingent consideration obligations655   (including to the extent accounted for as bonuses, compensation or otherwise) and656   adjustments thereof and purchase price adjustments, in each case in connection with657   acquisitions, and (C) Transaction Expenses.658   (vi) the amount of any expense or reduction of Consolidated Net Income659   consisting of Restricted Subsidiary income attributable to minority interests or non-660   controlling interests of third parties in any non-wholly owned Restricted Subsidiary,661   (vii) (A) cost savings, operating expense reductions and synergies related to the662   Transactions that are reasonably identifiable and factually supportable and projected by663   the Borrower in good faith to result from actions that have been taken or with respect to664   which substantial steps have been taken or are expected to be taken (in the good faith665   determination of the Borrower) within 12 months after the Closing Date (calculated on a666   pro forma basis as though such cost savings, operating expense reductions and synergies667   had been realized on the first day of such period and as if such cost savings, operating668   expense reductions and synergies were realized during the entirety of such period), net of669   the amount of actual benefits realized during such period from such actions; and (B) cost670   savings, operating expense reductions and synergies related to mergers and other business671   combinations, acquisitions, divestitures, restructurings, cost savings initiatives and other672   similar initiatives and actions that are reasonably identifiable and factually supportable673   and projected by the Borrower in good faith to result from actions that have been taken or674   with respect to which substantial steps have been taken or are expected to be taken (in the675   good faith determination of the Borrower) within 12 months after a merger or other676   business combination, acquisition or divestiture is consummated or any other677   restructuring, cost savings initiative or other initiative or action (calculated on a pro678   forma basis as though such cost savings, operating expense reductions and synergies had679   been realized on the first day of such period and as if such cost savings, operating680   expense reductions and synergies were realized during the entirety of such period), net of681   the amount of actual benefits realized during such period from such actions; provided that682   no cost savings, operating expense reductions and synergies shall be added back pursuant683   to this clause (vii) to the extent duplicative of any expenses or charges otherwise added684    





 







14   55802528_20   back to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for685   such period; provided, further, that the amount of adjustments made pursuant to clause686   (B) above for any Test Period, when added to the aggregate amount of add backs made687   pursuant to Section 1.07(c), shall not exceed 15% of Consolidated EBITDA (prior to688   giving effect to such clause (B) or Section 1.07(c) but, for the avoidance of doubt, after689   giving effect to other pro forma adjustments) for such Test Period,690   (viii) any net loss from disposed, abandoned or discontinued operations691   (excluding held-for-sale discontinued operations until actually disposed of),692   (ix) cash receipts (or any netting arrangements resulting in reduced cash693   expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any694   period to the extent non-cash gains relating to such income or netting arrangement were695   deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for696   any previous period and not added back,697   (x) non-cash expenses, charges and losses (including reserves, impairment698   charges or asset write-offs, write-offs of deferred financing fees, losses from investments699   recorded using the equity method, stock-based awards compensation expense), in each700   case other than (A) any non-cash charge representing amortization of a prepaid cash item701   that was paid and not expensed in a prior period and (B) any non-cash charge relating to702   write-offs, write-downs or reserves with respect to accounts receivable in the normal703   course or inventory; provided that if any non-cash charges referred to in this clause (x)704   represents an accrual or reserve for potential cash items in any future period, (1) the705   Borrower may elect not to add back such non-cash charge in the current period and (2) to706   the extent the Borrower elects to add back such non-cash charge, the cash payment in707   respect thereof in such future period shall be subtracted from Consolidated EBITDA in708   such future period to such extent paid,709   (xi) any fees and expenses incurred during such period (including any710   premiums, make-whole or penalty payments), or any amortization thereof for such711   period, in connection with any acquisition, investment, asset disposition, issuance or712   repayment of debt, issuance of equity securities, refinancing transaction or amendment or713   other modification of any debt instrument (in each case, including any such transaction714   consummated on or prior to the Closing Date and any such transaction undertaken but not715   completed) and any charges or non-recurring merger costs incurred during such period as716   a result of any such transaction, in each case whether or not successful (including, for the717   avoidance of doubt the effects of expensing all transaction related expenses in accordance718   with FASB ASC 805 and gains or losses associated with FASB ASC 460),719   (xii) any non-cash compensation charge or expense, including any such charge720   or expense arising from the grants of stock appreciation or similar rights, stock options,721   restricted stock or other rights or equity incentive programs or any other equity-based722   compensation,723   (xiii) any expenses, charges or losses that are covered by indemnification or724   other reimbursement provisions in connection with any Investment, Acquisition or any725    





 







15   55802528_20   sale, conveyance, transfer or other disposition of assets permitted under this Credit726   Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a727   determination that a reasonable basis exists for indemnification or reimbursement and728   only to the extent that such amount is in fact indemnified or reimbursed within 365 days729   of such determination (with a deduction in the applicable future period for any amount so730   added back to the extent not so indemnified or reimbursed within such 365 day period),731   (xiv) to the extent covered by insurance and actually reimbursed, or, so long as732   the Borrower has made a determination that there exists reasonable evidence that such733   amount will in fact be reimbursed by the insurer and only to the extent that such amount734   is in fact reimbursed within 365 days of the date of such determination (with a deduction735   in the applicable future period for any amount so added back to the extent not so736   reimbursed within such 365 days), expenses, charges or losses with respect to liability or737   casualty events or business interruption,738   minus (b) without duplication and to the extent included in arriving at such Consolidated Net739   Income, (i) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of740   an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior741   period), (ii) any net income from disposed, abandoned or discontinued operations (excluding742   held-for-sale discontinued operations until actually disposed of) and (iii) the amount of any743   minority interest income consisting of Restricted Subsidiary losses attributable to minority744   interests or non-controlling interests of third parties in any non-wholly owned Restricted745   Subsidiary; provided that, for the avoidance of doubt, any gain representing the reversal of any746   non-cash charge referred to in clause (a)(x)(B) above for a prior period shall be added (together747   with, without duplication, any amounts received in respect thereof to the extent not increasing748   Consolidated Net Income) to Consolidated EBITDA in any subsequent period to such extent so749   reversed (or received);750   provided, further, that:751   (A) to the extent included in Consolidated Net Income, there shall be excluded752   in determining Consolidated EBITDA (x) currency translation or transaction gains and753   losses related to currency remeasurements of Indebtedness (including the net loss or gain754   (i) resulting from Swap Contracts for currency exchange risk and (ii) resulting from755   intercompany indebtedness) and (y) all other foreign currency translation or transaction756   gains or losses to the extent such gains or losses are non-cash items,757   (B) to the extent included in Consolidated Net Income, there shall be excluded758   in determining Consolidated EBITDA for any period any adjustments resulting from the759   application of FASB ASC 815 and International Accounting Standard No. 39 and their760   respective related pronouncements and interpretations,761   (C) to the extent included in Consolidated Net Income, there shall be excluded762   in determining Consolidated EBITDA for any period any income (loss or expenses) for763   such period attributable to the early extinguishment of (i) Indebtedness, (ii) obligations764   under any Swap Contracts or (iii) other derivative instruments.765    





 







16   55802528_20   Notwithstanding anything to the contrary contained herein, for purposes of determining766   Consolidated EBITDA under this Credit Agreement (A) for any period that includes the fiscal767   quarter ended June 30, 2016, Consolidated EBITDA shall be calculated assuming that the768   portion of Consolidated EBITDA attributable to the Target and its Subsidiaries for the fiscal769   month of April is $3,061,000, and (B) for any period that includes any of the fiscal quarters770   ended June 30, 2015, September 30, 2015, December 31, 2015 and March 31, 2016,771   Consolidated EBITDA for such fiscal quarters shall be $22,031,000, $20,580,000, $21,764,000772   and $23,054,000, respectively, as may be subject in the case of the stipulated numbers set forth773   in clauses (A) and (B) to addbacks and adjustments (without duplication) pursuant to clauses774   (a)(v)(A) and (a)(vii) above and, with respect to adjustments pursuant to Section 1.07 for775   transactions occurring after the Closing Date, Section 1.07 for the applicable Test Period. For776   the avoidance of doubt, Consolidated EBITDA shall be calculated, including pro forma777   adjustments, in accordance with Section 1.07.778   “Consolidated Interest Expense” means, for any period, the cash interest expense779   (including that attributable to Capitalized Leases), net of cash interest income, of the Borrower780   and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP,781   with respect to all outstanding Indebtedness of the Borrower and its Restricted Subsidiaries,782   including all commissions, discounts and other fees and charges owed with respect to letters of783   credit and bankers’ acceptance financing and net cash costs under Swap Contracts; provided that784   there shall be excluded from Consolidated Interest Expense for any period:785   (a) deferred financing costs, debt issuance costs, commissions, fees (including786   amendment and contract fees) and expenses and, in each case, the amortization thereof,787   and any other amounts of non-cash interest,788   (b) the accretion or accrual of discounted liabilities and any prepayment789   premium or penalty during such period,790   (c) non-cash interest expense attributable to the movement of the mark-to-791   market valuation of obligations under Swap Contracts or other derivative instruments792   pursuant to FASB ASC 815.793   (d) any cash costs associated with early termination in respect of hedging794   agreements for interest rates,795   (e) Transaction Expenses,796   (f) annual agency fees paid to the Administrative Agent,797   (g) costs associated with obtaining Swap Contracts,798   (h) any expense resulting from the discounting of any Indebtedness in799   connection with the application of recapitalization accounting or, if applicable,800   acquisition accounting in connection with the Transactions or any acquisition, and801   (i) the cash interest expense (or income) of all Unrestricted Subsidiaries for802   such period to the extent otherwise included in Consolidated Interest Expense.803    





 







17   55802528_20   Notwithstanding anything to the contrary contained herein, for purposes of determining804   Consolidated Interest Expense (i) for any period ending prior to the first anniversary of the805   Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated806   Interest Expense from the Closing Date through the date of determination multiplied by a807   fraction the numerator of which is 365 and the denominator of which is the number of days from808   the Closing Date through the date of determination and (ii) shall exclude the acquisition809   accounting effects described in the last sentence of the definition of Consolidated Net Income.810   “Consolidated Net Income” means, for any period, net income (or loss) of the Borrower811   and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance812   with GAAP, but excluding813   (i) any after-tax effect of extraordinary, non-recurring or unusual items814   (including gains or losses and all fees and expenses relating thereto) for such period,815   (ii) the cumulative effect of a change in accounting principles during such816   period to the extent included in Consolidated Net Income,817   (iii) any net after-tax effect of gains or losses (less all fees, expenses and818   charges relating thereto) on discontinued operations or asset dispositions, abandonments819   or the sale or other disposition of Capital Stock of any Person, in each case other than in820   the ordinary course of business (as determined in good faith by the Borrower),821   (iv) the net income (loss) for such period of any Person that is not a Subsidiary822   of the Borrower, or is an Unrestricted Subsidiary, or that is accounted for by the equity823   method of accounting; provided that Consolidated Net Income of the Borrower shall be824   increased by the amount of dividends or distributions or other payments that are actually825   paid in cash or Cash Equivalents (or to the extent subsequently converted into cash or826   Cash Equivalents) to the Borrower or a Restricted Subsidiary thereof in respect of such827   period,828   (v) any impairment charge or asset write-off or write-down, including829   impairment charges or asset write-offs or write-downs related to intangible assets, long-830   lived assets, investments in debt and equity securities or as a result of a Change in Law,831   in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to832   GAAP, and833   (vi) the income (or loss) of any Person accrued prior to the date it becomes a834   Restricted Subsidiary of Borrower or is merged into or consolidated with Borrower or835   any of its Subsidiaries or that Person’s assets are acquired by Borrower or any of its836   Restricted Subsidiaries shall be excluded (except to the extent required for any837   calculation of Consolidated EBITDA on a Pro Forma Basis in accordance with838   Section 1.07).839   There shall be excluded from Consolidated Net Income for any period the acquisition840   accounting effects of adjustments in component amounts required or permitted by GAAP841   pursuant to FASB ASC 805 (including in the inventory, property and equipment, fair value of842   leased property, software, goodwill, intangible assets, in-process research and development,843    





 







18   55802528_20   deferred revenue, deferred rent, contingent considerations and debt line items thereof) and844   related authoritative pronouncements (including the effects of such adjustments pushed down to845   the Borrower and the Restricted Subsidiaries), as a result of the Transactions, any acquisition846   constituting an Investment permitted under this Agreement consummated prior to or after the847   Closing Date, or the amortization or write-off of any amounts thereof.848   “Consolidated Total Net Debt” means, as of any date of determination, (a) the849   aggregate principal amount of Indebtedness of the Borrower and its Restricted Subsidiaries850   outstanding on such date, in an amount that would be reflected on a balance sheet prepared as of851   such date on a consolidated basis in accordance with GAAP (but excluding the effects of any852   discounting of Indebtedness resulting from the application of acquisition accounting in853   connection with the Transactions or any acquisition constituting an Investment permitted under854   this Agreement) consisting of Indebtedness for borrowed money, Attributable Indebtedness, and855   debt obligations evidenced by promissory notes or similar instruments (including purchase856   money debt) and all guarantees of Indebtedness of such type that is owed by a Person that is not857   the Borrower or a Restricted Subsidiary, minus (b) the aggregate amount not to exceed for858   purposes of this clause (b) $62,500,000 of cash and Cash Equivalents (other than Restricted859   Cash), in each case, included on the consolidated balance sheet of the Borrower and the860   Restricted Subsidiaries as of such date, free and clear of all Liens (other than Liens permitted by861   clauses (a), (b), (c), (e), (f), (j), (l), (m), (p), (t) and (w) of Section 8.01 (to the extent, with862   respect to such clauses (m), (t) and (w) of Section 8.01, such Liens are not first priority Liens or863   the obligations secured by such Lien are subordinated to the Obligations); provided that (A)864   Consolidated Total Net Debt shall not include Indebtedness in respect of (i) letters of credit,865   except to the extent of unreimbursed amounts thereunder and (which unreimbursed amount866   under commercial letters of credit shall not be counted as Consolidated Total Net Debt until867   three Business Days after such amount is drawn) and (ii) Unrestricted Subsidiaries and (B) for868   the avoidance of doubt, it is understood and agreed that obligations under Swap Contracts do not869   constitute Consolidated Total Net Debt.870   “Consolidated Total Net Leverage Ratio” means, with respect to any Test Period, the871   ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated872   EBITDA for such Test Period.873   “Continuing Directors” means, as of any date of determination, any director or manager874   (or their equivalent) of the Borrower:875   (a) who was a director or manager (or their equivalent) on the Closing Date;876   or877   (b) whose nomination for election to the board of directors or managers (or878   their equivalent) of the Borrower is recommended by, or is otherwise elected to the board879   of directors or managers (or their equivalent) with the approval of, a majority of the then880   Continuing Directors at the time of such nomination or election.881   “Contractual Obligation” means, as to any Person, any provision of any security issued882   by such Person or of any agreement, instrument or other undertaking to which such Person is a883   party or by which it or any of its property is bound.884    





 







19   55802528_20   “Control” means the possession, directly or indirectly, of the power to direct or cause the885   direction of the management or policies of a Person, whether through the ability to exercise886   voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings887   correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to888   be Controlled by another Person if such other Person possesses, directly or indirectly, power to889   vote 10% or more of the securities having ordinary voting power for the election of directors,890   managing general partners or the equivalent.891   “Credit Agreement” has the meaning provided in the introductory paragraph hereto.892   “Credit Documents” means this Credit Agreement, the Notes, the Issuer Documents, the893   Collateral Documents, the Guaranties, each Request for Credit Extension, any agreement894   creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.16 of this895   Credit Agreement and the Joinder Agreements.896   “Credit Extension” means each of the following: (a) a Borrowing, (b) the conversion or897   continuation of a Borrowing and (c) an L/C Credit Extension.898   “Credit Parties” means, collectively, the Borrower and the Guarantors.899   “Credit Party Materials” has the meaning provided in Section 7.02.900   “Cumulative Equity Credit” means, at any date, an amount determined on a cumulative901   basis equal to, without duplication:902   (a) the cumulative amount of cash and Cash Equivalent proceeds from the903   sale of Qualified Stock of the Borrower after the Closing Date and on or prior to such904   time (including upon exercise of warrants or options) (other than any amount used to905   incur Indebtedness pursuant to Section 8.03(o), make Restricted Payments pursuant to906   Section 8.06(d) or make prepayments of Junior Debt pursuant to Section 8.12(a)) which907   proceeds have been contributed as common equity to the capital of the Borrower, plus908   (b) 100% of the aggregate amount of contributions to the common capital of909   the Borrower received in cash and Cash Equivalents after the Closing Date (other than910   any amount used to incur Indebtedness pursuant to Section 8.03(o), make Restricted911   Payments pursuant to Section 8.06(d) or make prepayments of Junior Debt pursuant to912   Section 8.12(a)), plus913   (c) an amount equal to any returns in cash and Cash Equivalents (including914   dividends, interest, distributions, returns of principal, profits on sale, repayments, income915   and similar amounts) actually received by the Borrower or any Restricted Subsidiary in916   respect of any Investments made pursuant to Section 8.02(m)(y), minus917   (d) any amount of the Cumulative Equity Credit used to make Investments918   pursuant to Section 8.02(m)(y), make Restricted Payments pursuant to Section 8.06(h)(y)919   or make payments or distributions in respect of Junior Debt pursuant to Section920   8.12(a)(iii)(y) after the Closing Date and prior to such time.921    





 







20   55802528_20   “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other922   liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,923   rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the924   United States or other applicable jurisdictions from time to time in effect and affecting the rights925   of creditors generally.926   “Default” means any event, act or condition that constitutes an Event of Default or that,927   with the giving of notice, the passage of time, or both, would constitute an Event of Default.928   “Default Rate” means,929   (a) in the case of the Letter of Credit Fee, an interest rate equal to the sum of930   (i) the Applicable Percentage for Revolving Credit Loans that are Base Rate Loans, plus931   (ii) two percent (2.0%) per annum;932   (b) in the case of Eurocurrency Rate Loans under any Facility, an interest rate933   equal to the sum of (i) the Eurocurrency Rate therefor, plus (ii) the Applicable Percentage934   in respect of Eurocurrency Rate Loans under such Facility, plus (iii) two percent (2.0%)935   per annum;936   (c) in the case of Base Rate Loans under any Facility, an interest rate equal to937   the sum of (i) the Base Rate, plus (ii) the Applicable Percentage in respect of Base Rate938   Loans under such Facility, plus (iii) two percent (2.0%) per annum; and939   (d) in all other cases, an interest rate equal to the sum of (i) the Base Rate,940   plus (ii) the Applicable Percentage in respect of Revolving Loans that are Base Rate941   Loans, plus (iii) two percent (2.0%) per annum.942   “Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion943   of its Loans within two Business Days of the date such Loans were required to be funded944   hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that945   such failure is the result of such Lender’s determination that one or more conditions precedent to946   funding (each of which conditions precedent, together with any applicable Default, shall be947   specifically identified in such writing) has not been satisfied or (ii) pay to the Administrative948   Agent, the L/C Issuer, the Swingline Lender or any other Lender any other amount required to be949   paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline950   Loans) within two Business Days of the date when due, (b) has notified the Borrower, the951   Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not intend to952   comply with its funding obligations hereunder, or has made a public statement to that effect953   (unless such writing or public statement relates to such Lender’s obligation to fund a Loan954   hereunder and states that such position is based on such Lender’s determination that a condition955   precedent to funding (which condition precedent, together with any applicable Default, shall be956   specifically identified in such writing or public statement) cannot be satisfied), (c) has failed,957   within three Business Days after written request by the Administrative Agent or the Borrower, to958   confirm in writing to the Administrative Agent and the Borrower that it will comply with its959   prospective funding obligations hereunder (provided that such Lender shall cease to be a960   Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the961    





 







21   55802528_20   Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company962   that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had963   appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit964   of creditors or similar Person charged with reorganization or liquidation of its business or assets,965   including the Federal Deposit Insurance Corporation or any other state or federal regulatory966   authority acting in such a capacity or (iii) became the subject of a Bail-in Action; provided that a967   Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any968   equity interest in that Lender or any direct or indirect parent company thereof by a Governmental969   Authority so long as such ownership interest does not result in or provide such Lender with970   immunity from the jurisdiction of courts within the United States or from the enforcement of971   judgments or writs of attachment on its assets or permit such Lender (or such Governmental972   Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or973   agreements made with such Lender. Any determination by the Administrative Agent that a974   Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and975   binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon976   delivery of written notice of such determination to the Borrower, the L/C Issuer, the Swingline977   Lender and the Lenders.978   “Defaulting Lender Account” has the meaning provided in Section 2.17(a).979   “Disposition” or “Dispose” means the sale, transfer, license, lease, abandonment or other980   disposition of any Property by any Person, including any sale, assignment, transfer or other981   disposal, with or without recourse, of any notes or accounts receivable or any rights and claims982   associated therewith, but excluding, for purposes hereof, (a) Dispositions of obsolete, worn out,983   surplus or no longer used or useful property, whether now owned or hereafter acquired, (b)984   Dispositions of inventory and goods held for sale in the ordinary course of business in the985   ordinary course of business, (c) Dispositions of equipment or real property to the extent that (i)986   such property is exchanged for credit against the purchase price of similar replacement property987   or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of988   such replacement property, (d) Dispositions or discounts without recourse of accounts receivable989   in connection with the compromise or collection thereof in the ordinary course of business, (e)990   any Involuntary Disposition and (f) the unwinding of any Swap Contract.991   “Disqualified Institutions” means those Persons (the list of all such Persons, the992   “Disqualified Institutions List”) that are (i) identified in writing by the Borrower to the993   Administrative Agent prior to March 23, 2016, (ii) competitors of the Borrower and its994   Subsidiaries that are identified in writing by the Borrower to the Administrative Agent from time995   to time or (iii) Affiliates of such Persons set forth in clauses (i) and (ii) above (in the case of996   Affiliates of such Persons set forth in clause (ii) above, other than bona fide fixed income997   investors or debt funds) that are either (a) identified in writing by the Borrower to the998   Administrative Agent from time to time or (b) clearly identifiable on the basis of such Affiliate’s999   name; provided that to the extent Persons are identified as Disqualified Institutions in writing by1000   the Borrower to the Administrative Agent after the Closing Date pursuant to clauses (ii) or1001   (iii)(a), the inclusion of such Persons as Disqualified Institutions shall not retroactively apply to1002   prior assignments or participations in respect of any Loan under this Credit Agreement. Until the1003   disclosure of the identity of a Disqualified Institution to the Lenders generally by the1004   Administrative Agent, such Person shall not constitute a Disqualified Institution for purposes of1005    





 







22   55802528_20   a sale of a participation in a Loan or an assignment of a Loan by a Lender; provided that no1006   disclosure of the Disqualified Institutions List (or the identity of any Person that constitutes a1007   Disqualified Institution) to the Lenders shall be made by the Administrative Agent without the1008   prior written consent of the Borrower. Notwithstanding the foregoing, the Borrower, by written1009   notice to the Administrative Agent, may from time to time in its sole discretion remove any1010   entity from the Disqualified Institutions List (or otherwise modify such list to remove any1011   particular entity), and such entity removed from the Disqualified Institutions List shall no longer1012   be a Disqualified Institution for any purpose under this Credit Agreement or any other Credit1013   Document.1014   “Disqualified Institutions List” has the meaning as set forth in the definition of1015   Disqualified Institutions.1016   “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any1017   security into which it is convertible, or for which it is exchangeable, in each case at the option of1018   the holder of the Capital Stock), or upon the happening of an event or condition (a) matures or is1019   mandatorily redeemable (other than solely for Qualified Stock), pursuant to a sinking fund1020   obligation or otherwise (except as a result of a change of control or asset sale so long as any1021   rights of the holders thereof upon the occurrence of a change of control or asset sale event shall1022   be subject to the prior repayment in full of the Loans and all other Obligations (other than (i)1023   contingent indemnification obligations as to which no claim has been asserted, (ii) Obligations1024   described in clauses (b) and (c) of the definition thereof and (iii) any Letter of Credit that has1025   been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to the L/C1026   Issuer or such Letter of Credit has been deemed reissued under another agreement reasonably1027   acceptable to the L/C Issuer) that are accrued and payable and the termination of the1028   Commitments and the termination of all outstanding Letters of Credit (unless the Outstanding1029   Amount of the L/C Obligations related thereto has been Cash Collateralized, back-stopped by a1030   letter of credit reasonably satisfactory to the L/C Issuer or deemed reissued under another1031   agreement reasonably acceptable to the L/C Issuer)), (b) is redeemable at the option of the holder1032   thereof (other than solely for Qualified Stock and other than as a result of a change of control or1033   asset sale event shall be subject to the prior repayment in full of the Loans and all other1034   Obligations (other than (i) contingent indemnification obligations as to which no claim has been1035   asserted, (ii) Obligations described in clauses (b) and (c) of the definition thereof and (iii) any1036   Letter of Credit that has been Cash Collateralized or back-stopped by a letter of credit reasonably1037   satisfactory to the L/C Issuer or such Letter of Credit has been deemed reissued under another1038   agreement reasonably acceptable to the L/C Issuer) that are accrued and payable and the1039   termination of the Commitments and the termination of all outstanding Letters of Credit (unless1040   the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized,1041   back-stopped by a letter of credit reasonably satisfactory to the L/C Issuer or deemed reissued1042   under another agreement reasonably acceptable to the L/C Issuer)), in whole or in part or (c) is or1043   becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would1044   constitute Disqualified Stock, in each case, prior to the date that is 91 days after the Latest1045   Maturity Date at the time of issuance of such Capital Stock; provided that if such Capital Stock1046   is issued pursuant to a plan for the benefit of future, current or former employees, directors,1047   officers, members of management or consultants of the Borrower or the Restricted Subsidiaries1048   or by any such plan to such employees, directors, officers, members of management or1049   consultants, such Capital Stock shall not constitute Disqualified Stock solely because they may1050    





 







23   55802528_20   be permitted to be repurchased by the Borrower or its Restricted Subsidiaries in order to satisfy1051   applicable statutory or regulatory obligations or as a result of such employee’s, director’s,1052   officer’s, management member’s or consultant’s termination of employment or service, as1053   applicable, death or disability.1054   “Distressed Agent-Related Person” has the meaning provided in the definition of1055   Agent-Related Distress Event.1056   “Dollar” or “$” means the lawful currency of the United States.1057   “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in1058   Dollars, such amount, and (b) with respect to any amount denominated in any Alternative1059   Currency, the equivalent amount thereof in Dollars as determined by the L/C Issuer at such time1060   on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the1061   purchase of Dollars with such Alternative Currency.1062   1063   “Domestic Subsidiary” means any Subsidiary that is organized under the Laws of any1064   state of the United States or the District of Columbia.1065   “EEA Financial Institution” means (a) any credit institution or investment firm1066   established in any EEA Member Country which is subject to the supervision of an EEA1067   Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of1068   an institution described in clause (a) of this definition, or (c) any financial institution established1069   in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)1070   of this definition and is subject to consolidated supervision with its parent;1071   “EEA Member Country” means any of the member states of the European Union,1072   Iceland, Liechtenstein, and Norway.1073   “EEA Resolution Authority” means any public administrative authority or any person1074   entrusted with public administrative authority of any EEA Member Country (including any1075   delegee) having responsibility for the resolution of any EEA Financial Institution.1076   “Eligible Assignee” has the meaning set forth in Section 11.06(a)(i). For the avoidance1077   of doubt, “Eligible Assignee” shall not include any Disqualified Institution.1078   “Environment” shall mean ambient air, indoor air, surface water, groundwater, drinking1079   water, land surface, sediments, and subsurface strata & natural resources such as wetlands, flora1080   and fauna.1081   “Environmental Laws” means any and all applicable federal, state, local, and foreign1082   statutes, laws (including the common law), regulations, ordinances, rules, judgments, orders,1083   decrees, permits, concessions, grants, franchises, licenses, agreements or governmental1084   restrictions relating to pollution, the protection of the Environment or the Release of any1085   Hazardous Materials into the Environment.1086   “Environmental Liability” means any liability, contingent or otherwise (including any1087   liability for damages, costs of environmental remediation, fines, penalties or indemnities), of or1088    





 







24   55802528_20   relating to the Borrower, any other Credit Party or any of their respective Subsidiaries directly or1089   indirectly resulting from or based upon (a) any Environmental Law, including a violation of any1090   Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any1091   Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened1092   Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other1093   consensual arrangement pursuant to which liability is assumed or imposed with respect to any of1094   the foregoing.1095   “Environmental Permit” means any permit, approval, identification number, license or1096   other authorization required under any Environmental Law.1097   “Equity Offering” means the issuance by the Borrower of any Capital Stock in an1098   underwritten public offering (other than a public offering pursuant to a registration statement on1099   Form S-8) pursuant to an effective registration statement filed with the U.S. Securities and1100   Exchange Commission in accordance with the Securities Act or in a private placement pursuant1101   to an exemption from the Securities Act.1102   “ERISA” means the Employee Retirement Income Security Act of 1974.1103   “ERISA Affiliate” means any trade or business (whether or not incorporated) that1104   together with the Borrower or any other Credit Party is treated as a single employer under1105   Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal1106   Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).1107   “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a1108   withdrawal by a Credit Party or any ERISA Affiliate from a Pension Plan subject to Section1109   4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section1110   4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under1111   Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Credit Party or any ERISA1112   Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in1113   reorganization; (d) the filing of a notice of intent to terminate, the treatment of a plan amendment1114   as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings1115   by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition that1116   would reasonably be expected to constitute grounds under Section 4042 of ERISA for the1117   termination by the PBGC of, or the appointment of a trustee to administer, any Pension Plan or1118   Multiemployer Plan; (f) the failure by a Credit Party or any ERISA Affiliate to satisfy the1119   minimum funding standard applicable to a Pension Plan for any plan year under Section 412 of1120   the Internal Revenue Code or Section 303 of ERISA; (g) the determination that any Pension Plan1121   is considered an at-risk plan within the meaning of Section 430 of the Internal Revenue Code or1122   Section 303 of ERISA; (h) receipt by a Credit Party or any ERISA Affiliate of any notice that1123   any Multiemployer Plan is in “endangered” or “critical” status within the meaning of Sections1124   431 and 432 of the Internal Revenue Code and Sections 304 and 305 of ERISA; or (i) the1125   imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not1126   delinquent under Section 4007 of ERISA by the PBGC, upon a Credit Party or any ERISA1127   Affiliate.1128    





 







25   55802528_20   “Escrow Assumption” means with respect to any Incremental Term Loan that is initially1129   established as an Escrow Incremental Term Loan, the assumption of the Escrow Borrower’s1130   obligations with respect thereto by the Borrower pursuant to an assumption agreement in form1131   reasonably satisfactory to the Administrative Agent.1132   “Escrow Borrower” means a Person that is a U.S. entity and is not the Borrower1133   established to (i) borrow Escrow Incremental Term Loans pending assumption of such1134   Incremental Term Loans by the Borrower or (ii) assume the obligations of the Borrower with1135   respect to previously incurred Incremental Term Loans, in each case, that is designated in the1136   applicable Incremental Amendment or assumption agreement as an Escrow Borrower and that is1137   not engaged in any material operations and does not have any other material assets other than in1138   connection therewith.1139   “Escrow Funding Assignment” means the assignment by the Borrower to an Escrow1140   Borrower and the assumption by such Escrow Borrower, in each case, of the obligations of the1141   Borrower with respect to previously incurred Incremental Term Loans.1142   “Escrow Incremental Term Loan”: any Incremental Term Loan that either (x) is1143   initially borrowed by an Escrow Borrower or (y) is initially borrowed by the Borrower but was1144   subsequently converted to an Escrow Incremental Term Loans in accordance with Section 2.18,1145   in each case, for so long as the Escrow Assumption with respect to such Incremental Term Loan1146   has not occurred.1147   “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule1148   published by the Loan Market Association (or any successor person), as in effect from time to1149   time.1150   “Eurocurrency Rate” means:1151   (a) for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per1152   annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor1153   rate, which rate is approved by the Administrative Agent, as published on the applicable1154   Bloomberg screen page (or such other commercially available source providing such quotations1155   as may be designated by the Administrative Agent from time to time) at approximately 11:001156   a.m., London time, two Business Days prior to the commencement of such Interest Period, for1157   Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to1158   such Interest Period;1159   (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate1160   per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days1161   prior to such date for U.S. Dollar deposits with a term of one month commencing that day; and1162   (c) if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for1163   purposes of this Agreement;1164   provided that to the extent a comparable or successor rate is approved by the1165   Administrative Agent in connection herewith, the approved rate shall be applied in a manner1166   consistent with market practice; provided, further, that to the extent such market practice is not1167    





 







26   55802528_20   administratively feasible for the Administrative Agent, such approved rate shall be applied in a1168   manner as otherwise reasonably determined by the Administrative Agent in consultation with the1169   Borrower.1170   “Eurocurrency Rate Loan” means a Revolving Credit Loan or a Term Loan that bears1171   interest at a rate based on clause (a) of the definition of “Eurocurrency Rate.”1172   “Eurocurrency Reserve Percentage” means, for any day, the reserve percentage1173   (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not1174   applicable to any Lender, under regulations issued from time to time by the FRB for determining1175   the maximum reserve requirement (including any emergency, supplemental or other marginal1176   reserve requirement) with respect to Eurocurrency funding (currently referred to as1177   “Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate1178   Loan and for each outstanding Base Rate Loan bearing interest at a rate based on the1179   Eurocurrency Rate shall be adjusted automatically as of the effective date of any change in the1180   Eurocurrency Reserve Percentage.1181   “Eurocurrency Unavailability Period” means any period of time during which a notice1182   delivered to the Borrower in accordance with Section 3.03 shall remain in force and effect.1183   “Euros” means the lawful currency of the Participating Member States.1184   “Event of Default” has the meaning provided in Section 9.01.1185   “Evidence of Flood Insurance” has the meaning provided in the definition of Real1186   Estate Collateral Requirements.1187   “Exchange Act” means the Securities Exchange Act of 1934.1188   “Excluded Property” means (i) any fee-owned real property (other than Specified Real1189   Property) and any leasehold rights and interests in real property (it being understood that there1190   shall be no requirement to obtain landlord waivers, estoppels and collateral access letters), (ii)1191   motor vehicles, aircraft and other assets subject to certificates of title, except to the extent a1192   security interest therein can be perfected by the filing of a UCC financing statement, (iii)1193   Commercial Tort Claims (as defined in the Security Agreement) where the amount of damages1194   claimed by the applicable Credit Party is less than $5,000,000, (iv) governmental licenses or1195   state or local franchises, charters and authorizations and any other property and assets to the1196   extent that the Collateral Agent may not validly possess a security interest therein under1197   applicable Laws (including rules and regulations of any Governmental Authority or agency) or1198   the pledge or creation of a security interest in which would require governmental consent,1199   approval, license or authorization, other than to the extent such prohibition or limitation is1200   rendered ineffective under the UCC or other applicable Law notwithstanding such prohibition or1201   to the extent such consent has been obtained, (v) any particular asset or right under contract, if1202   the pledge thereof or the security interest therein is prohibited or restricted by applicable Law,1203   rule or regulation (including any rules or regulations of any Governmental Authority or agency),1204   or any third party (so long as any agreement with such third party that provides for such1205   prohibition or restriction was not entered into in contemplation of the acquisition of such assets1206   or entering into of such contract for the purpose of creating such prohibition or restriction), other1207    





 







27   55802528_20   than to the extent any such prohibition or restriction is rendered ineffective under the UCC or1208   other applicable Law notwithstanding such prohibition or restriction, (vi) (A) margin stock, (B)1209   Capital Stock in any Unrestricted Subsidiaries and (C) Capital Stock in any non-wholly owned1210   Restricted Subsidiaries and any entities which do not constitute Subsidiaries, but only to the1211   extent that (x) the Organization Documents or other agreements with equity holders (other than1212   the Borrower and its Restricted Subsidiaries) of such non-wholly owned Restricted Subsidiary or1213   other entity do not permit or restrict the pledge of such Capital Stock (to the extent such1214   restriction existed on the Closing Date or on the date of acquisition of such non-wholly owned1215   Restricted Subsidiary), or (y) the pledge of such Capital Stock (including any exercise of1216   remedies) would result in a change of control, repurchase obligation or other adverse1217   consequence to any of the Credit Parties or such non-wholly owned Restricted Subsidiary or1218   other entity, (vii) any lease, license or agreement or any property subject to a purchase money1219   security interest, Capitalized Lease obligations or similar arrangement permitted hereunder, in1220   each case permitted hereunder, to the extent the grant of a security interest therein would violate1221   or invalidate such lease, license or agreement or purchase money or similar arrangement or1222   create a right of termination in favor of any other party thereto (other than the Borrower or any of1223   its Restricted Subsidiaries) after giving effect to the applicable anti-assignment provisions of the1224   UCC or other applicable Law, other than proceeds and receivables thereof, the assignment of1225   which is expressly deemed effective under the UCC or other applicable Law notwithstanding1226   such prohibition, (viii) any property or assets for which the creation or perfection of pledges of,1227   or security interests in, such property or assets pursuant to the Collateral Documents would result1228   in material adverse tax consequences to the Borrower or any of its Subsidiaries, as reasonably1229   determined by the Borrower in consultation with the Administrative Agent, (ix) letter-of-credit1230   rights, except to the extent the security interest therein may be perfected by the filing of a UCC1231   financing statement, (x) (A) payroll and other employee wage and benefit accounts, (B) tax1232   accounts, including sales tax accounts, (C) escrow accounts and (D) fiduciary or trust accounts1233   and, in the case of clauses (A) through (D), the funds or other property held in or maintained in1234   any such account (as long as the accounts described in clauses (A) through (D) are used solely1235   for such purposes), (xi) any intent-to-use trademark application prior to the filing of a “Statement1236   of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely1237   during the period, if any, in which the grant of a security interest therein would impair the1238   validity or enforceability of such intent-to-use trademark application under applicable federal1239   Law and (xii) assets in circumstances where the cost of obtaining a security interest in such1240   assets, including the cost of title insurance, surveys or flood insurance (if necessary), would be1241   excessive in light of the practical benefit to the Lenders afforded thereby as reasonably1242   determined together by the Borrower and the Administrative Agent; provided, however, that1243   Excluded Property shall not include any proceeds, substitutions or replacements of any Excluded1244   Property referred to in clause (i) through (xii) (unless such proceeds, substitutions or1245   replacements would independently constitute Excluded Property referred to in clauses (i) through1246   (xii)).1247   “Excluded Subsidiary” means (a) any Subsidiary that is not a Wholly Owned Subsidiary1248   of the Borrower or a Guarantor, (b) any Subsidiary that is prohibited by applicable Law or by1249   Contractual Obligations existing on the Closing Date (or, in the case of any newly acquired1250   Subsidiary, in existence at the time of acquisition but not entered into in contemplation thereof)1251   from guaranteeing the Obligations or if guaranteeing the Obligations would require1252   governmental (including regulatory) consent, approval, license or authorization, (c) any1253    





 







28   55802528_20   Subsidiary where the Administrative Agent and the Borrower agree that the cost of obtaining a1254   Guaranty by such Subsidiary would be excessive in light of the practical benefit to the Lenders1255   afforded thereby, (d) any Foreign Subsidiary, (e) any not-for-profit Subsidiaries, (f) any1256   Unrestricted Subsidiaries, (g) any special purpose securitization vehicle (or similar entity), (h)1257   any CFC Holdco, (i) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign1258   Subsidiary that is a CFC, and (j) any Subsidiary, the obtaining of a Guaranty with respect to1259   which would result in material adverse tax consequences as reasonably determined by the1260   Borrower in consultation with the Administrative Agent.1261   “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap1262   Obligation if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the1263   grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty1264   thereof) (after giving effect to any keepwell, support or other agreement provided by the1265   Borrower or any of its Subsidiaries with respect to the obligations of such Guarantor) is or1266   becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the1267   Commodity Futures Trading Commission (or the application or official interpretation of any1268   thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract1269   participant” as defined in the Commodity Exchange Act and the regulations thereunder at the1270   time the guaranty of such Guarantor or the grant of such security interest becomes effective with1271   respect to such Swap Obligation. If a Swap Obligation arises under a master agreement1272   governing more than one swap, such exclusion shall apply only to the portion of such Swap1273   Obligation that is attributable to swaps for which such guaranty or security interest is or becomes1274   illegal.1275   “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C1276   Issuer or any other recipient of any payment to be made by or on account of any obligation of1277   any Credit Party hereunder, (a) Taxes imposed on or measured by its overall net income1278   (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), in each1279   case (i) by the jurisdiction (or any political subdivision thereof) under the Laws of which such1280   recipient is organized or in which its principal office is located or, in the case of any Lender, in1281   which its applicable Lending Office is located, or (ii) as the result of any other present or former1282   connection between such recipient and the jurisdiction imposing such Tax (other than any1283   connection arising solely from such recipient having executed, delivered, become a party to,1284   performed its obligations under, received payments under, received or perfected a security1285   interest under, or engaged in any other transaction pursuant to or enforced any Credit Documents,1286   or sold or assigned an interest in any Loan or Credit Document), (b) any branch profits taxes1287   imposed by the United States or any similar tax imposed by any other jurisdiction in which a1288   Lender is located, (c) any U.S. federal withholding Taxes required to be withheld from amounts1289   payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), (d) in the1290   case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under1291   Section 11.13), any United States federal withholding tax that (i) is required to be imposed on1292   amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign1293   Lender becomes a party hereto (or designates a new Lending Office, other than in the case of a1294   designation under Section 3.06(a)), except to the extent that such Foreign Lender (or its assignor,1295   if any) was entitled, at the time of designation of a new Lending Office (or assignment), to1296   receive additional amounts from the applicable Credit Party with respect to such withholding tax1297    





 







29   55802528_20   pursuant to Section 3.01(a)(ii) or (c), (e) U.S. federal backup withholding Taxes, and (f) any1298   Taxes imposed under FATCA.1299   “Existing Letters of Credit” means the letters of credit outstanding on the Closing Date1300   and identified on Schedule 2.03.1301   “Extended Revolving Commitment” means any Class of Revolving Credit1302   Commitments the maturity of which shall have been extended pursuant to Section 2.19.1303   “Extended Revolving Loans” means any Revolving Credit Loans made pursuant to the1304   Extended Revolving Commitments.1305   “Extended Term Loans” means any Class of Term Loans the maturity of which shall1306   have been extended pursuant to Section 2.19.1307   “Extension” has the meaning provided in Section 2.19(a).1308   “Extension Amendment” has the meaning provided in Section 2.19(d).1309   “Extension Offer” has the meaning provided in Section 2.19(a).1310   “Facility” means the Term Loan Facility or the Revolving Credit Facility, as the context1311   may require.1312   “FASB ASC” means the Accounting Standards Codification of the Financial Accounting1313   Standards Board.1314   “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of the1315   Closing Date (or any amended or successor version to the extent substantively comparable and1316   not materially more onerous to comply with), any current or future regulations or official1317   interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the1318   Internal Revenue Code, including any intergovernmental agreements and any rules or official1319   guidance implementing such intergovernmental agreements.1320   “FCPA” has the meaning provided in Section 6.21(a).1321   “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted1322   average of the rates on overnight federal funds transactions with members of the Federal Reserve1323   System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank1324   of New York on the Business Day next succeeding such day; provided that (a) if such day is not1325   a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on1326   the next preceding Business Day as so published on the next succeeding Business Day, and (b) if1327   no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for1328   such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100th1329   of 1%) charged to Bank of America on such day on such transactions as determined by the1330   Administrative Agent.1331    





 







30   55802528_20   “Fee Letter” means the Fee Letter addressed to the Borrower, dated as of March 23,1332   2016, from Bank of America, Citibank, N.A., KeyBank National Association, SunTrust Bank1333   and the Arrangers.1334   “Financial Covenants” means the covenants set forth in Section 8.11.1335   “Flood Determination Form” has the meaning provided in the definition of Real Estate1336   Collateral Requirements.1337   “Flood Documents” has the meaning provided in the definition of Real Estate Collateral1338   Requirements.1339   “Flood Laws” shall mean, collectively, (i) the National Flood Insurance Reform Act of1340   1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood1341   Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii)1342   the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute1343   thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in1344   effect or any successor statute thereto.1345   “Foreign Disposition” has the meaning provided in Section 2.06(b)(ii)(D).1346   “Foreign Lender” means any Lender that is not a United States person for U.S. federal1347   income tax purposes.1348   “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.1349   “Francs” means the lawful currency of Switzerland.1350   “FRB” means the Board of Governors of the Federal Reserve System of the United1351   States.1352   “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to1353   the L/C Issuer, such Defaulting Lender’s Aggregate Commitment Percentage of the outstanding1354   L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation1355   obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in1356   accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting1357   Lender’s Aggregate Commitment Percentage of Swingline Loans other than Swingline Loans as1358   to which such Defaulting Lender’s participation obligation has been reallocated to other1359   Revolving Credit Lenders or Cash Collateralized in accordance with the terms hereof.1360   “Fund” means any Person (other than a natural person) that is (or will be) engaged in1361   making, purchasing, holding or otherwise investing in commercial loans and similar extensions1362   of credit in the ordinary course of its activities.1363   “GAAP” means generally accepted accounting principles in the United States set forth in1364   the opinions and pronouncements of the Accounting Principles Board and the American Institute1365   of Certified Public Accountants and statements and pronouncements of the Financial Accounting1366   Standards Board in the United States, that are applicable to the circumstances as of the date of1367    





 







31   55802528_20   determination, or on adoption of the International Financial Reporting Standards (the “IFRS”),1368   the IFRS, in either case, consistently applied and subject to the provisions of Section 1.03.1369   “Governmental Authority” means the government of the United States or any other1370   nation, or of any political subdivision thereof, whether state or local, and any agency, authority,1371   instrumentality, regulatory body, court, central bank or other entity exercising executive,1372   legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to1373   government (including any supra-national bodies such as the European Union or the European1374   Central Bank) and any group or body charged with setting financial accounting or regulatory1375   capital rules or standards (including the Financial Accounting Standards Board, the Bank for1376   International Settlements or the Basel Committee on Banking Supervision or any successor or1377   similar authority to any of the foregoing).1378   “Guarantors” has the meaning set forth in the definition of “Collateral and Guarantee1379   Requirement” and shall include each Restricted Subsidiary who after the Closing Date becomes1380   a Guarantor pursuant to a Joinder Agreement or other documentation in form and substance1381   reasonably acceptable to the Administrative Agent, in each case together with their respective1382   successors and permitted assigns. For avoidance of doubt, and notwithstanding any limitations1383   to the requirement to provide a Guaranty or grant security interests in the assets of any1384   Subsidiary to the contrary, the Borrower with the consent of the Administrative Agent (not to be1385   unreasonably withheld, conditioned or delayed) may cause any Restricted Subsidiary that is not a1386   Guarantor to guarantee the Obligations and comply with the provisions of Section 7.121387   (including in the case of any Foreign Subsidiary by delivering, within time frames and subject to1388   extensions as agreed with the Administrative Agent, such Collateral Documents, as determined1389   as reasonably necessary by the Administrative Agent in consultation with the Borrower, to grant1390   and perfect security interests in such Foreign Subsidiary’s relevant assets for which security1391   interests are customarily granted in such Subsidiary’s jurisdiction of organization but with1392   exclusions consistent as applicable with the definition of Excluded Property) by causing such1393   Restricted Subsidiary to execute a joinder to this Agreement in form and substance reasonably1394   satisfactory to the Administrative Agent, and any such Restricted Subsidiary shall be a Guarantor1395   and Credit Party hereunder for all purposes. In addition, the Borrower shall be a Guarantor in1396   respect of Swap Obligations and Treasury Management Obligations to which the Borrower is not1397   party.1398   “Guaranty” means (a) the guaranty provided pursuant to Article 4 hereof and/or (b) any1399   other guaranty agreement given by any Person pursuant to the terms hereof.1400   “Hazardous Materials” means petroleum or petroleum distillates, asbestos or asbestos-1401   containing materials, polychlorinated biphenyls, radon gas and all other substances, materials or1402   wastes of any nature regulated pursuant to any Environmental Law.1403   “Historical Financial Statements” means (a) the audited consolidated balance sheets1404   and related statements of comprehensive income, shareholders’ equity and cash flows of the1405   Borrower for the fiscal years ended June 30, 2013, June 30, 2014 and June 30, 2015, (b) the1406   audited consolidated balance sheet of the Target as of September 27, 2015 and September 28,1407   2014 and consolidated statement of profit and loss of the Target for the fiscal years ended1408   September 27, 2015, September 28, 2014 and September 29, 2013 (together with the financial1409    





 







32   55802528_20   statements referred to in clause (a), the “Annual Financial Statements”), (c) the unaudited1410   consolidated balance sheets and related consolidated statements of comprehensive income and1411   cash flows for the Borrower for the fiscal quarters of the Borrower ended September 30, 20151412   and December 31, 2015 and (d) the consolidated unaudited balance sheet and related1413   consolidated statement of profit and loss and cash flows of the Target, reviewed by1414   PricewaterhouseCoopers LLP in accordance with the Statements on Standards for Accounting1415   and Review Services issued by the American Institute of Certified Public Accountants, for the1416   fiscal quarter of the Target ended January 3, 2016 (together with the financial statements referred1417   to in clause (a), the “Quarterly Financial Statements”).1418   “IFRS” has the meaning specified in the definition of GAAP.1419   “Incremental Amendment Date” has the meaning provided in Section 2.18(c).1420   “Incremental Commitment” means an Incremental Revolving Commitment or an1421   Incremental Term Commitment, as applicable.1422   “Incremental Equivalent Debt” has the meaning provided in Section 8.03(q).1423   “Incremental Facility” means an Incremental Term Commitment or an Incremental1424   Revolving Commitment, as applicable.1425   “Incremental Facility Closing Date” has the meaning provided in Section 2.18(b).1426   “Incremental Increase” means a Term Loan Increase or a Revolving Commitment1427   Increase, as applicable.1428   “Incremental Lender” means an Incremental Revolving Lender or an Incremental Term1429   Lender, as applicable.1430   “Incremental Loans” means the Incremental Term Loans or the Incremental Revolving1431   Loans, as applicable.1432   “Incremental Revolving Commitment” means the commitment of any Lender,1433   established pursuant to Section 2.18, to make Incremental Revolving Loans to the Borrower.1434   “Incremental Revolving Lender” means a Revolving Credit Lender with an Incremental1435   Revolving Commitment or an outstanding Incremental Revolving Loan.1436   “Incremental Revolving Loan” means Revolving Credit Loans made by one or more1437   Revolving Credit Lenders to the Borrower pursuant to their Incremental Revolving1438   Commitments. Incremental Revolving Loans may only be made in the form of additional1439   Revolving Credit Loans.1440   “Incremental Term Commitment” means the commitment of any Lender, established1441   pursuant to Section 2.18, to make Incremental Term Loans to the Borrower.1442    





 







33   55802528_20   “Incremental Term Lender” means a Lender with an Incremental Term Commitment or1443   an outstanding Incremental Term Loan.1444   “Incremental Term Loans” means additional Term Loans made by one or more Lenders1445   to the Borrower pursuant to their Incremental Term Commitments.1446   “Indebtedness” means, as to any Person at a particular time, without duplication, all of1447   the following, whether or not included as indebtedness or liabilities in accordance with GAAP:1448   (a) all obligations of such Person for borrowed money and all obligations of1449   such Person evidenced by bonds, debentures, notes, loan agreements or other similar1450   instruments;1451   (b) all indebtedness and obligations in respect of the deferred purchase price1452   of property or services (other than (i) trade accounts payable incurred in the ordinary1453   course of business, (ii) any bona fide deferred purchase price arrangement, earn-out or1454   similar obligation, unless such obligation has not been paid after becoming due and1455   payable in accordance with its terms and (iii) accruals for payroll and other liabilities1456   accrued in the ordinary course of business);1457   (c) all obligations under letters of credit (including standby and commercial),1458   bankers’ acceptances and similar instruments (including bank guaranties, surety bonds,1459   comfort letters, keep-well agreements and capital maintenance agreements) to the extent1460   such instruments or agreements support financial, rather than performance, obligations;1461   (d) indebtedness (excluding prepaid interest thereon) secured by a Lien on1462   property owned or being purchased by such Person (including indebtedness arising under1463   conditional sales or other title retention agreements and mortgage, industrial revenue1464   bond, industrial development bond and similar financings), whether or not such1465   indebtedness shall have been assumed by such Person or is limited in recourse;1466   (e) all Attributable Indebtedness;1467   (f) all obligations of such Person in respect of Disqualified Stock;1468   (g) net obligations of such Person under any Swap Contract; and1469   (h) to the extent not otherwise included above, all Support Obligations of such1470   Person in respect of any of the foregoing.1471   For all purposes hereof, the Indebtedness of any Person shall (A) include the1472   Indebtedness of any partnership or joint venture (other than a joint venture that is itself a1473   corporation or limited liability company) or other similar entity in which such Person is a general1474   partner or joint venturer, except to the extent such Person’s liability for such obligation is1475   expressly made non-recourse or otherwise limited and (B) in the case of the Borrower and its1476   Restricted Subsidiaries, exclude all intercompany Indebtedness so long as such intercompany1477   Indebtedness (i) has a term not exceeding 364 days (inclusive of any roll-over or extensions of1478   terms) and (ii) is made in the ordinary course of business. The amount of Indebtedness shall be1479    





 







34   55802528_20   determined (i) based on Swap Termination Value in the case of net obligations under Swap1480   Contracts under clause (g), and (ii) based on the outstanding principal amount of the1481   Indebtedness that is the subject of the Support Obligations in the case of Support Obligations1482   under clause (h). The amount of Indebtedness of any Person for purposes of clause (d) (unless1483   such Indebtedness has been assumed by such Person or is otherwise recourse to such Person)1484   shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness1485   and (ii) the fair market value of the property encumbered thereby.1486   “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with1487   respect to any payment made by or on account of any obligation of the Borrower under any1488   Credit Document and (b) to the extent not otherwise described in clause (a), Other Taxes.1489   “Indemnitee” has the meaning provided in Section 11.04(b).1490   “Information” has the meaning provided in Section 11.07.1491   “Initial Revolving Credit Commitments” means the Revolving Credit Commitments of1492   the Revolving Credit Lenders on the Closing Date pursuant to Section 2.01(b).1493   “Initial Term Loans” means the Term Loans made by the Term Lenders to the Borrower1494   on the Closing Date pursuant to Section 2.01(a).1495   “Intellectual Property Security Agreements” means the Intellectual Property Security1496   Agreements as such term is defined in the Security Agreement.1497   “Intercompany Note” means a promissory note substantially in the form of Exhibit1498   1.01-3.1499   “Interest Payment Date” means, (a) as to any Base Rate Loan (including Swingline1500   Loans), the last Business Day of each March, June, September and December, and the Revolving1501   Termination Date (in the case of Revolving Credit Loans) or the applicable Maturity Date (in the1502   case of Term Loans) and, in the case of any Swingline Loan, any other dates as may be mutually1503   agreed upon by the Borrower and the Swingline Lender, and (b) as to any Eurocurrency Rate1504   Loan, the last Business Day of each Interest Period for such Loan, the date of repayment of1505   principal of such Loan, and the Revolving Termination Date (in the case of Revolving Credit1506   Loans) or the applicable Maturity Date (in the case of Term Loans), and in addition, where the1507   applicable Interest Period exceeds three months, the date every three months after the beginning1508   of such Interest Period. If an Interest Payment Date falls on a date that is not a Business Day,1509   such Interest Payment Date shall be deemed to be the next succeeding Business Day.1510   “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on1511   the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a1512   Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, as1513   selected by the Borrower in the applicable Loan Notice or, in the case of Eurocurrency Rate1514   Loans, a period that is twelve months or less if requested by the Borrower and consented to by1515   all of the Appropriate Lenders; provided that:1516    





 







35   55802528_20   (a) any Interest Period that would otherwise end on a day that is not a1517   Business Day shall be extended to the next succeeding Business Day unless such1518   Business Day falls in another calendar month, in which case such Interest Period shall1519   end on the next preceding Business Day;1520   (b) any Interest Period that begins on the last Business Day of a calendar1521   month (or on a day for which there is no numerically corresponding day in the calendar1522   month at the end of such Interest Period) shall end on the last Business Day of the1523   calendar month at the end of such Interest Period; and1524   (c) no Interest Period with respect to (i) any Revolving Credit Loan shall1525   extend beyond the Revolving Termination Date or (ii) any Term Loans shall extend1526   beyond the applicable Maturity Date.1527   “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.1528   “Investment” means, as to any Person, any direct or indirect acquisition or investment by1529   such Person, whether by means of (a) the purchase or other acquisition of Capital Stock of1530   another Person, (b) a loan, advance or capital contribution to, guaranty or assumption of debt of,1531   or purchase or other acquisition of any other debt or equity participation or interest in, another1532   Person, including any partnership or joint venture interest in such other Person (excluding, in the1533   case of the Borrower and its Restricted Subsidiaries, intercompany loans, advances or1534   Indebtedness having a term not exceeding 364 days (inclusive of any roll over or extensions of1535   terms) and made in the ordinary course of business) and any arrangement pursuant to which the1536   investor undertakes any Support Obligation with respect to Indebtedness or other obligation of1537   such other Person, or (c) the purchase or other acquisition (in one transaction or a series of1538   transactions) of assets of another Person that constitute a business unit, a line of business or1539   division of such Person. For purposes of covenant compliance, the amount of any Investment1540   shall be the amount actually invested, without adjustment for subsequent increases or decreases1541   in the value of such Investment, but in any event reduced by any dividend, distribution, interest1542   payment, return of capital, repayment or other amount received in cash by the Borrower or a1543   Restricted Subsidiary in respect of, but in no event exceeding the original amount of, such1544   Investment.1545   For purposes of the definition of “Unrestricted Subsidiary” and the covenants described1546   under Sections 7.14 and 8.02:1547   (1) “Investments” shall include the portion (proportionate to the Borrower’s1548   Capital Stock in such Subsidiary) of the fair market value of the net assets of a Subsidiary1549   of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary;1550   provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the1551   Borrower shall be deemed to continue to have a permanent “Investment” in an1552   Unrestricted Subsidiary in an amount (if positive) equal to:1553   (a) the Borrower’s “Investment” in such Subsidiary at the time of such1554   redesignation; less1555    





 







36   55802528_20   (b) the portion (proportionate to the Borrower’s Capital Stock in such1556   Subsidiary) of the fair market value of the net assets of such Subsidiary at the1557   time of such redesignation; and1558   (2) any property transferred to or from an Unrestricted Subsidiary shall be1559   valued at its fair market value at the time of such transfer.1560   “Involuntary Disposition” means the receipt by the Borrower or any Restricted1561   Subsidiary of any cash insurance proceeds or condemnation awards payable by reason of theft,1562   loss, physical destruction or damage, taking or similar event with respect to any of its Property.1563   “IP Rights” has the meaning provided in Section 6.19.1564   “IRS” means the United States Internal Revenue Service.1565   “ISP” means, with respect to any Letter of Credit, the “International Standby Practices1566   1998” published by the Institute of International Banking Law & Practice (or such later version1567   thereof as may be in effect at the time of issuance of such Letter of Credit).1568   “Issuer Documents” means, with respect to any Letter of Credit, the L/C Application1569   and any other document, agreement or instrument (including such Letter of Credit) entered into1570   by the Borrower (or any other Credit Party) and the L/C Issuer (or in favor of the L/C Issuer),1571   relating to such Letter of Credit.1572   “Joinder Agreement” means with respect to any Guarantor, a joinder agreement1573   substantially in the form of Exhibit 7.12 executed and delivered in accordance with the1574   provisions of Section 7.12.1575   “Judgment Currency” has the meaning specified in Section 11.21.1576   1577   “Junior Debt” has the meaning provided in Section 8.12.1578   “Latest Maturity Date” means at any time, the latest maturity or expiration date1579   applicable to any Loan or Commitment (or, if so specified, applicable to the specified Loans or1580   Commitments or the Class thereof) hereunder at such time.1581   “Laws” means, collectively, all international, foreign, federal, state and local statutes,1582   treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial1583   precedents or authorities, including the interpretation or administration thereof by any1584   Governmental Authority charged with the enforcement, interpretation or administration thereof,1585   and all applicable administrative orders, directed duties, licenses, authorizations and permits of,1586   and agreements with, any Governmental Authority.1587   “L/C Advance” means, with respect to each Revolving Credit Lender, such Revolving1588   Credit Lender’s funding of its participation in any L/C Borrowing.1589   “L/C Application” means an application and agreement for the issuance or amendment1590   of a Letter of Credit in the form from time to time in use by the L/C Issuer.1591    





 







37   55802528_20   “L/C Borrowing” means any extension of credit resulting from a drawing under any1592   Letter of Credit that has not been reimbursed or refinanced as a Borrowing of Revolving Credit1593   Loans.1594   “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof1595   or extension of the expiry date thereof, or the increase of the amount thereof.1596   “L/C Expiration Date” means the day that is five Business Days prior to the Revolving1597   Termination Date then in effect (or, if such day is not a Business Day, the immediately preceding1598   Business Day).1599   “L/C Honor Date” has the meaning provided in Section 2.03(c)(i).1600   “L/C Issuer” means (a) as to Existing Letters of Credit, KeyBank National Association1601   and (b) Bank of America, through itself or through one of its designated Affiliates or branch1602   offices, in its capacity as issuer of Letters of Credit hereunder, together with its successors in1603   such capacity. For the avoidance of doubt, KeyBank National Association will be the L/C Issuer1604   only with respect to the Existing Letters of Credit referred to in the prior sentence.1605   “L/C Obligations” means, at any time, the sum of (a) the maximum amount available to1606   be drawn under Letters of Credit then outstanding, assuming compliance with all requirements1607   for drawings referenced therein, plus (b) the aggregate amount of all L/C Unreimbursed1608   Amounts, including L/C Borrowings. For purposes of computing the amount available to be1609   drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in1610   accordance with Section 1.06. For all purposes of this Credit Agreement, if on any date of1611   determination a Letter of Credit has expired by its terms but any amount may still be drawn1612   thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be1613   deemed to be “outstanding” in the amount so remaining available to be drawn.1614   “L/C Sublimit” has the meaning provided in Section 2.01(c).1615   “L/C Unreimbursed Amount” has the meaning provided in Section 2.03(c)(i).1616   “LCT Election” has the meaning provided in Section 1.07(e).1617   “LCT Test Date” has the meaning provided in Section 1.07(e).1618   “Lender” means each of the Persons identified as a “Lender” on the signature pages1619   hereto (and, as appropriate, includes the Swingline Lender), each other Person that becomes a1620   “Lender” in accordance with this Credit Agreement and their respective successors and assigns.1621   “Lending Office” means, as to any Lender, the office or offices of such Lender set forth1622   in such Lender’s Administrative Questionnaire or such other office or offices as a Lender may1623   from time to time notify the Borrower and the Administrative Agent.1624   “Letter of Credit” means each Existing Letter of Credit and each letter of credit issued1625   hereunder. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.1626   Letters of Credit may be issued in Dollars or in any Alternative Currency.1627    





 







38   55802528_20   “Letter of Credit Fees” has the meaning provided in Section 2.09(b)(i).1628   “LIBOR” has the meaning provided in the definition of “Eurocurrency Rate.”1629   “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,1630   encumbrance, lien (statutory or other), charge, priority or other security interest in the nature of a1631   security interest of any kind or nature whatsoever (including any conditional sale or other title1632   retention agreement, any easement, right of way or other encumbrance on title to real property1633   and any Capitalized Lease having substantially the same economic effect as any of the1634   foregoing); provided that in no event shall an operating lease in and of itself be deemed a Lien.1635   “Limited Condition Transaction” means any acquisition permitted by Section 8.02 the1636   consummation of which is not conditioned on the availability of, or on obtaining, third party1637   financing.1638   “Liquidity” means, as of any date of determination, an amount equal to the sum of (a)1639   amounts available at such time to be drawn under the Revolving Credit Commitments and (b) the1640   amount of cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries on a1641   consolidated basis.1642   “Loan” means any Term Loan, Revolving Credit Loan or Swingline Loan, and Base Rate1643   Loans and Eurocurrency Rate Loans comprising such Loans.1644   “Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit1645   Borrowing, (c) a Swingline Borrowing, (d) a conversion of Loans from one Type to the other, or1646   (e) a continuation of Eurocurrency Rate Loans, which, if in writing, shall be substantially in the1647   form of Exhibit 2.02 or such other form as may be approved by the Administrative Agent1648   (including any form on an electronic platform or electronic transmission system as shall be1649   approved by the Administrative Agent), appropriately completed and signed by a Responsible1650   Officer of the Borrower.1651   “Loan Obligations” has the meaning provided in the definition of “Obligations.”1652   “Mandatory Prepayment Declined Proceeds” has the meaning provided in Section1653   2.06(b)(ii)(F).1654   “Mandatory Prepayment Rejection Notice” has the meaning provided in Section1655   2.06(b)(ii)(F).1656   “Material Adverse Effect” means (a) a material adverse change in, or a material adverse1657   effect upon, the operations, business, assets, properties, liabilities (actual or contingent) or1658   financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole; (b) a1659   material adverse effect of the ability of the Credit Parties, as a whole, to perform their payment1660   obligations under the Credit Documents; or (c) a material adverse effect upon the rights and1661   remedies available to the Lenders or the Administrative Agent under any Credit Document.1662   “Material Domestic Subsidiary” means, at any date of determination, each of the1663   Borrower’s Domestic Subsidiaries (a) whose total assets (when combined with the assets of such1664    





 







39   55802528_20   Subsidiary’s Subsidiaries after eliminating intercompany obligations) at the last day of the most1665   recent Test Period were equal to or greater than 2.5% of Total Assets at such date or (b) whose1666   gross revenues (when combined with the revenues of such Subsidiary’s Subsidiaries after1667   eliminating intercompany obligations) for such Test Period were equal to or greater than 2.5% of1668   the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period,1669   in each case determined in accordance with GAAP; provided that if, at any time and from time to1670   time after the Closing Date, Domestic Subsidiaries that are not Guarantors solely because they1671   do not meet the thresholds set forth in clauses (a) or (b) comprise in the aggregate more than 5.0%1672   of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower for which1673   financial statements have been delivered pursuant to Section 7.01 or more than 5.0% of the1674   consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such Test Period,1675   then the Borrower shall, not later than forty-five (45) days after the date by which financial1676   statements for such quarter are required to be delivered pursuant to this Agreement (or such1677   longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate1678   in writing to the Administrative Agent one or more of such Domestic Subsidiaries as “Material1679   Domestic Subsidiaries” to the extent required such that the foregoing condition ceases to be true1680   and (ii) comply with the provisions of Section 7.12 applicable to such Subsidiary.1681   “Material Foreign Subsidiary” means, at any date of determination, each of the1682   Borrower’s Foreign Subsidiaries (a) whose total assets (when combined with the assets of such1683   Subsidiary’s Subsidiaries after eliminating intercompany obligations) at the last day of the most1684   recent Test Period were equal to or greater than 2.5% of Total Assets at such date or (b) whose1685   gross revenues (when combined with the revenues of such Subsidiary’s Subsidiaries after1686   eliminating intercompany obligations) for such Test Period were equal to or greater than 2.5% of1687   the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period,1688   in each case determined in accordance with GAAP; provided that if, at any time and from time to1689   time after the Closing Date, Foreign Subsidiaries not meeting the thresholds set forth in clauses1690   (a) or (b) comprise in the aggregate more than 5.0% of Total Assets as of the end of the most1691   recently ended fiscal quarter of the Borrower for which financial statements have been delivered1692   pursuant to Section 7.01 or more than 5.0% of the consolidated gross revenues of the Borrower1693   and the Restricted Subsidiaries for such Test Period, then the Borrower shall, not later than forty-1694   five (45) days after the date by which financial statements for such quarter are required to be1695   delivered pursuant to this Agreement (or such longer period as the Administrative Agent may1696   agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or1697   more of such Foreign Subsidiaries as “Material Foreign Subsidiaries” to the extent required such1698   that the foregoing condition ceases to be true and (ii) comply with the provisions of the definition1699   of “Collateral and Guarantee Requirement.”1700   “Material Subsidiary” means any Material Domestic Subsidiary or any Material Foreign1701   Subsidiary.1702   “Maturity Date” means the date that is five years following the Closing Date; provided1703   that if such date is not a Business Day, the Maturity Date shall be the immediately preceding1704   Business Day.1705   “Maximum Rate” has the meaning provided in Section 11.09.1706    





 







40   55802528_20   “Microsemi Acquisition” has the meaning provided in the preliminary statements hereto.1707   “MLPF&S” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, together with1708   its successors.1709   “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.1710   “Mortgage Policies” has the meaning provided in the definition of Real Estate Collateral1711   Requirements.1712   “Mortgaged Properties” means each Specified Real Property.1713   “Mortgages” means the mortgages, deeds of trust, deeds to secure debt and other similar1714   security documents delivered pursuant to the Collateral and Guarantee Requirement or otherwise,1715   each in such form as reasonably agreed between the Borrower and the Administrative Agent,1716   including all changes as may be required to account for local Law matters, as the same may be1717   amended, amended and restated, supplemented or otherwise modified from time to time.1718   “Multiemployer Plan” means a “multiemployer plan” within the meaning of1719   Section 4001(a)(3) of ERISA and subject to ERISA, to which a Credit Party or any ERISA1720   Affiliate makes or is obligated to make contributions, or during the preceding six plan years, has1721   made or been obligated to make contributions.1722   “Net Cash Proceeds” means:1723   (a) with respect to any Disposition or Involuntary Disposition, the aggregate1724   proceeds paid in cash or Cash Equivalents received by the Borrower or any Restricted1725   Subsidiary in connection with any Disposition or Involuntary Disposition, net of (i) direct1726   costs (including legal, accounting and investment banking fees, sales commissions and1727   underwriting discounts, consultant fees, and other customary fees and expenses incurred1728   in connection therewith), (ii) estimated taxes paid or payable as a result thereof, (iii)1729   amounts required to be applied to the repayment of Indebtedness (other than the1730   Indebtedness hereunder, Incremental Equivalent Debt and Refinancing Equivalent Debt)1731   secured by a Lien on the asset or assets the subject of such Disposition or Involuntary1732   Disposition (or, in the case of Net Cash Proceeds of any Foreign Disposition, amounts1733   applied during such period to the permanent repayment of any Indebtedness of the1734   Foreign Subsidiaries to the extent required by the terms of such Indebtedness), (iv) in the1735   case of any Disposition or Involuntary Disposition by a non-wholly owned Restricted1736   Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without1737   regard to this clause (iv)) attributable to minority interests and not available for1738   distribution to or for the account of the Borrower or a wholly-owned Restricted1739   Subsidiary as a result thereof and (v) the amount of any reserve established in accordance1740   with GAAP against any adjustment to the sale price or any liabilities (other than any1741   taxes deducted pursuant to clause (ii) above) (x) related to any of the applicable assets1742   and (y) retained by the Borrower or any of the Restricted Subsidiaries including pension1743   and other post-employment benefit liabilities and liabilities related to environmental1744   matters or against any indemnification obligations (provided, however, the amount of any1745   subsequent reduction of such reserve or reversal (other than in connection with a payment1746    





 







41   55802528_20   in respect of any such liability) shall be deemed to be Net Cash Proceeds of such1747   Disposition or Involuntary Disposition occurring on the date of such reduction or1748   reversal); provided, further, that no proceeds realized in a single transaction or series of1749   related transactions shall constitute Net Cash Proceeds unless (x) such proceeds shall1750   exceed $7,500,000 or (y) the aggregate net proceeds exceed $15,000,000 in any fiscal1751   year (and thereafter only net cash proceeds in excess of such amount shall constitute Net1752   Cash Proceeds under this clause (a)); and1753   (b) with respect to any incurrence or issuance of Indebtedness, the aggregate1754   principal amount actually received in cash by the Borrower or any Restricted Subsidiary1755   in connection therewith, net of direct costs (including legal, accounting and investment1756   banking fees, sales commissions and underwriting discounts). For purposes hereof, “Net1757   Cash Proceeds” includes any cash or Cash Equivalents received upon the disposition of1758   any non-cash consideration received by the Borrower or any Restricted Subsidiary in any1759   Disposition or Involuntary Disposition.1760   “NFIP” has the meaning provided in the definition of Real Estate Collateral1761   Requirements.1762   “Non-Consenting Lender” has the meaning provided in Section 11.13.1763   “Notes” means the Term Notes, the Revolving Credit Notes and the Swingline Notes.1764   “Obligations” means, without duplication, (a) all advances to, and debts, liabilities,1765   obligations, covenants and duties of, any Credit Party arising under any Credit Document or1766   otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those1767   acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter1768   arising and including interest and fees that accrue after the commencement by or against any1769   Credit Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor1770   in such proceeding, regardless of whether such interest and fees are allowed claims in such1771   proceeding (the “Loan Obligations”), (b) all obligations under any Swap Contract between the1772   Borrower or any Restricted Subsidiary, on the one hand, and any Agent, Lender or Affiliate of an1773   Agent or Lender or any Person that was an Agent, a Lender or an Affiliate of an Agent or Lender1774   on the date such transaction was entered into, on the other hand, to the extent such Swap1775   Contract is permitted hereunder, including the Swap Obligations between such parties but1776   excluding the Excluded Swap Obligations (the “Swap Contract Obligations”) and (c) all1777   obligations under any Treasury Management Agreement between the Borrower or any Restricted1778   Subsidiary, on the one hand, and any Agent, Lender or Affiliate of an Agent or Lender or any1779   Person that was an Agent, a Lender or an Affiliate of an Agent or Lender on the date such1780   transaction was entered into, on the other hand (the “Treasury Management Obligations”).1781   “OID” means original issue discount.1782   “Organization Documents” means, (a) with respect to any corporation, the certificate or1783   articles of incorporation and the bylaws (or equivalent or comparable constitutive documents1784   with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the1785   certificate or articles of formation or organization and the operating agreement; and (c) with1786    





 







42   55802528_20   respect to any partnership, joint venture, trust or other form of business entity, the partnership,1787   joint venture or other applicable agreement of formation or organization and any agreement,1788   instrument, filing or notice with respect thereto filed in connection with its formation or1789   organization with the applicable Governmental Authority in the jurisdiction of its formation or1790   organization and, if applicable, any certificate or articles of formation or organization of such1791   entity.1792   “Other Taxes” means all present or future stamp, court, documentary, intangible,1793   recording, filing or similar Taxes arising from any payment made hereunder or under any other1794   Credit Document or from the execution, delivery or enforcement of, or otherwise with respect to,1795   this Credit Agreement or any other Credit Document, except any such Taxes imposed by a1796   jurisdiction with which the Lender has a connection described in clause (a)(ii) of the definition of1797   Excluded Taxes with respect to an assignment or grant of participation (other than assignment or1798   designation of a new office made pursuant to Section 3.06 or Section 11.13).1799   “Outstanding Amount” means (i) with respect to any Loans on any date, the aggregate1800   outstanding principal amount thereof after giving effect to any borrowings and prepayments or1801   repayments of such Loans occurring on such date; and (ii) with respect to any L/C Obligations1802   on any date, the Dollar Equivalent of the aggregate outstanding amount of such L/C Obligations1803   on such date after giving effect to any L/C Credit Extension occurring on such date and any other1804   changes in the aggregate amount of the L/C Obligations as of such date, including as a result of1805   any reimbursements by the Borrower of L/C Unreimbursed Amounts.1806   “Overnight Rate” means, for any day, (a) with respect to any amount denominated in1807   Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the1808   Administrative Agent, the L/C Issuer, or the Swingline Lender, as the case may be, in1809   accordance with banking industry rules on interbank compensation, and (b) with respect to any1810   amount denominated in an Alternative Currency, an overnight rate determined by the L/C Issuer,1811   as the case may be, in accordance with banking industry rules on interbank compensation.1812   “Participant” has the meaning provided in Section 11.06(d).1813   “Participant Register” has the meaning provided in Section 11.06(e).1814   “Participating Member State” means any member state of the European Union that1815   adopts or has adopted the Euro as its lawful currency in accordance with legislation of the1816   European Union relating to Economic and Monetary Union.1817   1818   “Payment Conditions” means, at any time of determination, calculated on a Pro Forma1819   Basis giving effect to the transactions for which Payment Conditions need to be satisfied (and1820   including any transactions contemplated in connection therewith), (i) the Consolidated Total Net1821   Leverage Ratio does not exceed 2.50:1.00, (ii) the Borrower has minimum pro forma Liquidity1822   of at least $25,000,000 and (iii) no Event of Default has occurred and is continuing or would1823   result from such transactions.1824   “PBGC” means the Pension Benefit Guaranty Corporation.1825    





 







43   55802528_20   “Pension Plan” means any “employee pension benefit plan” (as such term is defined in1826   Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA1827   and is sponsored or maintained by a Credit Party or any ERISA Affiliate or to which a Credit1828   Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a1829   multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions1830   at any time during the immediately preceding five plan years.1831   “Perfection Certificate” means the perfection certificate substantially in the form of1832   Exhibit 1.01-1.1833   “Permitted Acquisition” means any Investment of the type described in Section 8.02(f).1834   “Permitted Liens” means Liens permitted pursuant to Section 8.011835   “Permitted Refinancing” means, with respect to any Person, any modification,1836   refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (i)1837   the principal amount (or accreted value, if applicable) thereof does not exceed the principal1838   amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded,1839   renewed or extended except by an amount equal to any interest capitalized, any premium or other1840   reasonable amount paid, and fees and expenses reasonably incurred, in connection with such1841   modification, refinancing, refunding, renewal or extension; (ii) such modification, refinancing,1842   refunding, renewal or extension has a final maturity date equal to or later than the final maturity1843   date of, and has a weighted average life to maturity equal to or longer than the weighted average1844   life to maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended;1845   (iii) if the Indebtedness being modified, refinanced, refunded, renewed or extended is1846   subordinated in right of payment to the Obligations, such modification, refinancing, refunding,1847   renewal or extension is subordinated in right of payment to the Obligations on terms at least as1848   favorable, taken as a whole, to the Lenders as those contained in the documentation governing1849   the Indebtedness being modified, refinanced, refunded, renewed or extended; (iv) at the time of1850   such modification, refinancing, refunding, renewal or extension, no Event of Default shall have1851   occurred and be continuing; (v) if such Indebtedness being modified, refinanced, refunded,1852   renewed or extended is secured, the terms and conditions relating to collateral of any such1853   modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not1854   materially less favorable to the Credit Parties or the Lenders than the terms and conditions with1855   respect to the collateral for the Indebtedness being modified, refinanced, refunded, renewed or1856   extended, taken as a whole (and the Liens on any Collateral securing any such modified,1857   refinanced, refunded, renewed or extended Indebtedness shall have the same (or lesser) priority1858   as the Indebtedness being modified, refinanced, refunded, renewed or extended relative to the1859   Liens on the Collateral securing the Obligations; (vi) the terms and conditions (excluding any1860   subordination, pricing, fees, rate floors, discounts, premiums and optional prepayment or1861   redemption terms) of any such modified, refinanced, refunded, renewed or extended1862   Indebtedness, taken as a whole, shall not be materially less favorable to the Credit Parties than1863   the Indebtedness being modified, refinanced, refunded, renewed or extended, except for1864   covenants or other provisions applicable only to periods after the Latest Maturity Date; and (vii)1865   such modification, refinancing, refunding, renewal or extension is incurred by the Person who is1866   the obligor on the Indebtedness being modified, refinanced, refunded, renewed or extended. Any1867   reference to a Permitted Refinancing in this Agreement or any other Credit Document shall be1868    





 







44   55802528_20   interpreted to mean (a) a Permitted Refinancing of the subject Indebtedness and (b) any further1869   refinancing constituting a Permitted Refinancing of the Indebtedness resulting from a prior1870   Permitted Refinancing.1871   “Person” means any natural person, corporation, limited liability company, trust, joint1872   venture, association, company, partnership, Governmental Authority or other entity.1873   “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of1874   ERISA), including any Pension Plan (but excluding any Multiemployer Plan), that is subject to1875   ERISA and that is maintained or sponsored by a Credit Party or, with respect to any such plan1876   that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA, is maintained1877   or sponsored by any ERISA Affiliate.1878   “Platform” has the meaning provided in Section 7.02.1879   “Pre-Closing Equity Offering” means the public offering and sale by the Borrower of1880   Capital Stock consummated on April 13, 2016.1881   “Prime Rate” means the rate of interest in effect for such day as publicly announced1882   from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank1883   of America based upon various factors including Bank of America’s costs and desired return,1884   general economic conditions and other factors, and is used as a reference point for pricing some1885   loans, which may be priced at, above, or below such announced rate. Any change in the “prime1886   rate” announced by Bank of America shall take effect at the opening of business on the day1887   specified in the public announcement of such change.1888   “Pro Forma Basis,” “pro forma basis,” “Pro Forma Effect” and “pro forma effect”1889   means, for purposes of calculating compliance with the Financial Covenants or any other1890   financial ratio or tests (including in connection with Specified Transactions), such calculation1891   shall be made in accordance with Section 1.07.1892   “Pro Forma Financial Statements” means the pro forma balance sheet and related pro1893   forma statement of income of the Borrower and its Subsidiaries (including the Target) as of and1894   for the twelve-month period ending on the last day of the most recently completed four-fiscal1895   quarter period of the Borrower ended at least 45 days prior to the Closing Date, prepared after1896   giving effect to the Transactions as if the Transactions had occurred as of such date (in the case1897   of such balance sheet) or at the beginning of such period (in the case of the statement of income).1898   “Projections” has the meaning provided in Section 7.02(b).1899   “Property” means an interest of any kind in any property or asset, whether real, personal1900   or mixed, and whether tangible or intangible.1901   “Public Lender” has the meaning provided in Section 7.02.1902   “Qualified ECP Guarantor” means, in respect of any Swap Obligation, the Borrower1903   and each Guarantor that has total assets exceeding $10,000,000 at the time the relevant guaranty1904   or grant of the relevant security interest becomes effective with respect to such Swap Obligation1905    





 







45   55802528_20   or such other person as constitutes an “eligible contract participant” under the Commodity1906   Exchange Act or any regulations promulgated thereunder and can cause another person to1907   qualify as an “eligible contract participant” at such time by entering into a keepwell under1908   Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.1909   “Qualified Stock” means any Capital Stock that is not Disqualified Stock.1910   “Quarterly Financial Statements” has the meaning specified in the definition of1911   Historical Financial Statements.1912   “Ratio Debt” has the meaning provided in Section 8.03(g).1913   “Real Estate Collateral Requirements” means the requirements that the Borrower shall,1914   and shall cause each other Credit Party to, deliver to the Administrative Agent:1915   (a) a Mortgage with respect to each Mortgaged Property together with1916   evidence such Mortgage has been duly executed, acknowledged and delivered by a duly1917   authorized officer of the applicable Credit Party thereto on or before such date and is in1918   form suitable for filing and recording in all filing or recording offices that the1919   Administrative Agent may deem necessary in order to create a valid and subsisting1920   perfected Lien, excepting only Permitted Liens, on the property described therein in favor1921   of the Administrative Agent and that all filing and recording taxes and fees have been1922   paid or otherwise provided for in a manner reasonably satisfactory to the Administrative1923   Agent (notwithstanding any provision in this Credit Agreement to the contrary, if a1924   mortgage tax would otherwise be owed on the entire amount of the indebtedness1925   evidenced thereby, then the amount secured by the Mortgage shall be limited to the fair1926   market value of the Mortgaged Property at the time the Mortgage is entered into if such1927   limitation results in such mortgage tax being calculated based upon such fair market1928   value);1929   (b) fully paid American Land Title Association Lender’s title insurance1930   policies (the “Mortgage Policies”), in form and substance and in amounts reasonably1931   acceptable to the Administrative Agent, with endorsements to be agreed upon by the1932   Administrative Agent and the Borrower, and coinsurance or direct access reinsurance1933   (only to the extent required by the Title Agent), issued, coinsured or reinsured by First1934   American Title Insurance Company, Chicago Title Insurance Company or another title1935   insurer reasonably acceptable to the Administrative Agent (the “Title Agent”) but only to1936   the extent such endorsements are (i) available in the relevant jurisdiction and (ii)1937   available at commercially reasonable rates, insuring the Mortgages for the Mortgaged1938   Property to be valid and subsisting perfected Liens on the property described therein, free1939   and clear of all Liens, excepting only Permitted Liens;1940   (c) a zoning report in lieu of a zoning endorsement with respect to each of the1941   Mortgaged Properties.1942   (d) An ALTA survey in a form and substance reasonably acceptable to the1943   Administrative Agent or such existing survey together with a no-change affidavit1944   sufficient for the Title Agent to remove all standard survey exceptions from the Mortgage1945    





 







46   55802528_20   Policy related to such Mortgaged Property and issue the endorsements required in (b)1946   above.1947   (e) the Administrative Agent shall have received the following documents1948   (collectively, the “Flood Documents”): (i) a completed standard “life of loan” flood1949   hazard determination form (a “Flood Determination Form”), (ii) if the improvement(s)1950   to the applicable improved Mortgaged Property is located in a special flood hazard area, a1951   notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the1952   Borrower that flood insurance coverage under the National Flood Insurance Program1953   (“NFIP”) is not available because the community does not participate in the NFIP, (iii)1954   documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., a1955   countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight1956   delivery), and (iv) if the Borrower Notice is required to be given and flood insurance is1957   available in the community in which the property is located, a copy of one of the1958   following: the flood insurance policy, the applicable Credit Party’s application for a1959   flood insurance policy plus proof of premium payment, a declaration page confirming1960   that flood insurance has been issued, or such other evidence of flood insurance as1961   required by the applicable Flood Laws and otherwise reasonably satisfactory to the1962   Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”);1963   (f) favorable customary opinions of local counsel to the Credit Parties in1964   states in which the Mortgaged Property is located, with respect to the power and authority1965   of the applicable Credit Parties to execute the Mortgages, the due execution and delivery1966   of the Mortgages, enforceability and perfection of the Mortgages and any related fixture1967   filings, in form and substance reasonably satisfactory to the Administrative Agent;1968   (g) if requested by the Administrative Agent and required to comply with the1969   Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, as1970   amended, an appraisal of each of the properties described in the Mortgages;1971   (h) evidence that all other actions or documents reasonably requested by the1972   Administrative Agent, that are necessary in order to create valid and subsisting Liens on1973   the property described in the Mortgage for the applicable Mortgaged Property, have been1974   taken or delivered, as applicable; and1975   (i) evidence that all reasonable and documented fees, costs and expenses have1976   been paid in connection with the preparation, execution, filing and recordation of the1977   Mortgages for the Mortgaged Properties, including reasonable and documented attorneys’1978   fees, filing and recording fees, title insurance company coordination fees, documentary1979   stamp, mortgage and intangible taxes and title search charges and other charges incurred1980   in connection with the recordation of the Mortgages and the other matters discussed in1981   the definition of Real Estate Collateral Requirements.1982   “Refinanced Debt” has the meaning provided in Section 2.20(a).1983   “Refinancing” has the meaning provided in Section 5.01(l).1984   “Refinancing Amendment” has the meaning provided in Section 2.20(d).1985    





 







47   55802528_20   “Refinancing Commitments” means, collectively, the Refinancing Revolving1986   Commitments and the Refinancing Term Commitments.1987   “Refinancing Equivalent Debt” has the meaning provided in Section 8.03(r).1988   “Refinancing Facilities” means (a) with respect to any Class of Revolving Credit1989   Commitments or Revolving Credit Loans, Refinancing Revolving Commitments or Refinancing1990   Revolving Loans and (b) with respect to any Class of Term Loans, Refinancing Term Loans.1991   “Refinancing Facility Closing Date” has the meaning provided in Section 2.20(c).1992   “Refinancing Lender” means a Refinancing Revolving Lender or a Refinancing Term1993   Lender, as applicable.1994   “Refinancing Loans” has the meaning provided in Section 2.20(b).1995   “Refinancing Revolving Commitments” means one or more new Classes of Revolving1996   Credit Commitments established pursuant to a Refinancing Amendment in accordance with1997   Section 2.20.1998   “Refinancing Revolving Lender” means any Lender providing a Refinancing Revolving1999   Loan or a Refinancing Revolving Commitment in accordance with Section 2.20.2000   “Refinancing Revolving Loan” has the meaning provided in Section 2.20(b).2001   “Refinancing Term Commitment” means the commitment of any Lender to provide2002   one or more new Classes of Refinancing Term Loans established pursuant to a Refinancing2003   Amendment in accordance with Section 2.20.2004   “Refinancing Term Lender” means any Lender providing a Refinancing Term Loan in2005   accordance with Section 2.20.2006   “Refinancing Term Loans” has the meaning provided in Section 2.20(b).2007   “Register” has the meaning provided in Section 11.06(c).2008   “Related Parties” means, with respect to any Person, such Person’s Affiliates and the2009   partners, directors, officers, employees, agents, trustees and advisors of such Person and of such2010   Person’s Affiliates.2011   “Release” means any release, spill, emission, leaking, dumping, injection, pouring,2012   deposit, disposal, discharge, dispersal, leaching or migration into or through the Environment or2013   within, from or into any building, structure, facility or fixture.2014   “Reorganization Plan” has the meaning set forth in Section 11.06(k).2015   “Replaced Term Loans” has the meaning provided in Section 11.01.2016   “Replacement Term Loans” has the meaning provided in Section 11.01.2017    





 







48   55802528_20   “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,2018   other than events for which the notice period has been waived under applicable regulations.2019   “Request for Credit Extension” means (a) with respect to a Borrowing of Loans2020   (including Swingline Loans) or the conversion or continuation of Loans, a Loan Notice and (b)2021   with respect to an L/C Credit Extension, an L/C Application.2022   “Required Facility Lenders” means (a) with respect to the Term Loan Facility, the2023   Required Term Lenders and (ii) with respect to the Revolving Credit Facility, the Required2024   Revolving Credit Lenders.2025   “Required Lenders” means, as of any date of determination, Lenders having more than2026   50% of the Aggregate Commitments or, if the Commitments shall have expired or been2027   terminated, Lenders holding more than 50% of the aggregate principal amount of Loan2028   Obligations (including, in each case, the aggregate principal amount of each Revolving Credit2029   Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans);2030   provided that the Commitments of, and the portion of the Loan Obligations held by, any2031   Defaulting Lender shall be excluded for purposes of making a determination of Required2032   Lenders.2033   “Required Revolving Credit Lenders” means, as of any date of determination,2034   Revolving Credit Lenders having more than 50% of the Aggregate Revolving Credit2035   Commitments or, if the Revolving Credit Commitments shall have expired or been terminated,2036   Revolving Credit Lenders holding more than 50% of the aggregate principal amount of2037   Revolving Credit Obligations (including, in each case, the aggregate principal amount of each2038   Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and2039   Swingline Loans); provided that the Revolving Credit Commitments of, and the portion of2040   Revolving Credit Obligations held by, any Defaulting Lender shall be excluded for purposes of2041   making a determination of Required Revolving Credit Lenders.2042   “Required Term Lenders” means, as of any date of determination, Term Lenders2043   holding more than 50% of the Term Loan Facility on such date; provided that the portion of the2044   Term Loan Facility held by any Defaulting Lender shall be excluded for purposes of making a2045   determination of Required Term Lenders.2046   “Resignation Effective Date” shall have the meaning provided in Section 10.06(a).2047   “Responsible Officer” means an officer functioning as the chief executive officer, chief2048   operating officer, president, vice president, chief financial officer, chief accounting officer, chief2049   legal officer, treasurer, assistant treasurer, controller or secretary of a Credit Party or such other2050   Person as is authorized in writing to act on behalf of such Credit Party or, solely for purposes of2051   notices given pursuant to Article II, any other officer or employee of the applicable Credit Party2052   designated in or pursuant to an agreement between the applicable Credit Party and the2053   Administrative Agent. Any document delivered hereunder that is signed by a Responsible2054   Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary2055   corporate, partnership and/or other action on the part of such Credit Party and such Responsible2056   Officer shall be conclusively presumed to have acted on behalf of such Credit Party. All2057    





 







49   55802528_20   references to a “Responsible Officer” hereunder shall refer to a Responsible Officer of the2058   Borrower unless the context otherwise requires.2059   “Restricted Cash” means cash and Cash Equivalents which are listed as “Restricted” on2060   the consolidated balance sheet of the Borrower and its Restricted Subsidiaries.2061   “Restricted Payment” means any dividend or other distribution (whether in cash,2062   securities or other property) by the Borrower in respect of its Capital Stock, or any payment2063   (whether in cash, securities or other property) including any sinking fund payment or similar2064   deposit, for or on account of the purchase, redemption, retirement, defeasance, acquisition,2065   cancellation or termination of any Capital Stock of the Borrower or its Restricted Subsidiaries or2066   any option, warrant or other right to acquire any such Capital Stock of the Borrower or its2067   Restricted Subsidiaries; provided that a transaction with an Affiliate shall not be a Restricted2068   Payment pursuant to this definition solely because such transaction involves such Affiliate.2069   “Restricted Subsidiary” means any Subsidiary of the Borrower other than an2070   Unrestricted Subsidiary.2071   “Revaluation Date” means with respect to any Letter of Credit, each of the following:2072   (i) each date of issuance, amendment and/or extension of a Letter of Credit denominated in an2073   Alternative Currency, (ii) each date of any payment by the L/C Issuer under any Letter of Credit2074   denominated in an Alternative Currency, (iii) in the case of all Existing Letters of Credit2075   denominated in Alternative Currencies, the Closing Date, and (iv) such additional dates as the2076   Administrative Agent or the L/C Issuer shall determine. Once the Spot Rate is revalued by the2077   L/C Issuer it will advise the Borrower of the new Spot Rate.2078   2079   “Revolving Credit Borrowing” means a borrowing consisting of Revolving Credit2080   Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest2081   Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).2082   “Revolving Credit Commitment” means, for each Revolving Credit Lender, the2083   commitment of such Revolving Credit Lender to make Revolving Credit Loans (and to share in2084   Revolving Credit Obligations) hereunder pursuant to Section 2.01(b) in an aggregate principal2085   amount at any one time outstanding not to exceed the amount set forth opposite such Revolving2086   Credit Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or2087   opposite such caption in the Assignment and Assumption pursuant to which such Revolving2088   Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time2089   to time in accordance with this Credit Agreement.2090   “Revolving Credit Facility” means, at any time, the aggregate amount of Revolving2091   Credit Commitments at such time.2092   “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit2093   Commitment at such time.2094   “Revolving Credit Loan” has the meaning provided in Section 2.01(b).2095    





 







50   55802528_20   “Revolving Credit Note” means a promissory note made by the Borrower in favor of a2096   Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit2097   Lender, substantially in the form of Exhibit 2.13-1.2098   “Revolving Credit Obligations” means the Revolving Credit Loans, the L/C Obligations2099   and the Swingline Loans.2100   “Revolving Termination Date” means the date that is five years following the Closing2101   Date; provided that if such date is not a Business Day, the Revolving Termination Date shall be2102   the immediately preceding Business Day.2103   “Rupees” means the lawful currency of India.2104   “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-2105   Hill Companies, Inc., and any successor thereto.2106   “SEC” means the Securities and Exchange Commission, or any Governmental Authority2107   succeeding to any of its principal functions.2108   “Secured Obligations” has the meaning provided in the Security Agreement.2109   “Secured Parties” has the meaning provided in the Security Agreement.2110   “Securities Act” means the Securities Act of 1933, as amended.2111   “Security Agreement” means, collectively, (a) the security agreement dated as of the2112   Closing Date given by the Credit Parties party thereto, as grantors, to the Collateral Agent to2113   secure the Obligations substantially in the form of Exhibit 1.01-2 and (b) any other security2114   agreement in favor of the Collateral Agent to secure all or some portion of the Obligations that2115   may be given by any Person pursuant to the terms hereof.2116   “Solvency Certificate” means a Solvency Certificate substantially in the form of Exhibit2117   5.01(j).2118   “Solvent” means with respect to the Borrower and its Restricted Subsidiaries that2119   (a) after giving effect to the Transactions on or prior to the Closing Date both (i) the fair value of2120   the assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis, exceeds, on a2121   consolidated basis, their debts and liabilities, subordinated, contingent or otherwise and (ii) the2122   present fair salable value of the property of the Borrower and its Restricted Subsidiaries, on a2123   consolidated basis, is greater than the amount that will be required to pay the probable liability,2124   on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise,2125   as such debts and other liabilities become absolute and matured, (b) after giving effect to the2126   incurrence of the initial Credit Extension under this Credit Agreement on the Closing Date and2127   the consummation of the Transactions on the Closing Date, the Borrower and its Restricted2128   Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated,2129   contingent or otherwise, as such liabilities become absolute and matured, and (c) the incurrence2130   of the initial Credit Extension under this Credit Agreement on the Closing Date and the2131   consummation of the Transactions on the Closing Date, on a Pro Forma Basis, the Borrower and2132    





 







51   55802528_20   its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to2133   engage in, business for which they have unreasonably small capital. For purposes of this2134   definition, the amount of any contingent liability at any time shall be computed as the amount2135   that would reasonably be expected to become an actual and matured liability.2136   “Specified Real Property” means any fee interest of a Credit Party in owned real2137   property acquired after the Closing Date and located in the United States with a fair market value2138   (as determined by the Borrower (acting reasonably and in good faith)) in excess of $5,000,000 at2139   the time of such acquisition.2140   “Specified Representations” means the representations with respect to the Borrower and2141   the Guarantors set forth in Section 6.01(a), Section 6.01(b)(ii), Section 6.02(a) and (b), Section2142   6.04, Section 6.20, Sections 6.21(a)(ii), 6.21(a)(iii) (only with respect to the use of proceeds of2143   the Loans made on the Closing Date) and 6.21(b) (only with respect to the use of proceeds of the2144   Loans made on the Closing Date), Section 6.15, and Section 6.18 (subject to Permitted Liens and2145   the proviso at the end of Section 5.01(d)).2146   “Specified Transaction” means (v) any Investment that results in a Person becoming a2147   Restricted Subsidiary, (w) any designation of a Subsidiary as a Restricted Subsidiary or an2148   Unrestricted Subsidiary, (x) any Permitted Acquisition or other Acquisition constituting an2149   Investment permitted under Section 8.02, (y) any Disposition that results in a Restricted2150   Subsidiary ceasing to be a Subsidiary of the Borrower and any Disposition of a business unit,2151   line of business or division of the Borrower or a Restricted Subsidiary, in each case whether by2152   merger, consolidation, amalgamation or otherwise or (z) any incurrence or repayment of2153   Indebtedness, Restricted Payment, Incremental Revolving Commitment, Incremental Revolving2154   Loan or Incremental Term Loan, in each case, that by the terms of this Agreement requires a2155   financial ratio or test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”2156   “Spot Rate” for a currency means the rate determined by the L/C Issuer to be the rate2157   quoted by the L/C Issuer as the spot rate for the purchase by the L/C Issuer of such currency with2158   another currency through its principal foreign exchange trading office at approximately 11:002159   a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange2160   computation is made; provided that the L/C Issuer may obtain such spot rate from another2161   financial institution designated by the L/C Issuer if the L/C Issuer does not have as of the date of2162   determination a spot buying rate for any such currency; and provided, further, that the L/C Issuer2163   may use such spot rate quoted on the date as of which the foreign exchange computation is made2164   in the case of any Letter of Credit denominated in an Alternative Currency.2165   “Sterling” means the lawful currency of the United Kingdom.2166   “Subsequent Transaction” has the meaning provided in Section 1.07(e).2167   “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability2168   company or other business entity (i) of which a majority of the shares of securities or other2169   interests having ordinary voting power for the election of directors or other governing body2170   (other than securities or interests having such power only by reason of the happening of a2171   contingency) are at the time beneficially owned by such Person or (ii) the management of which2172    





 







52   55802528_20   is otherwise controlled, directly or indirectly, through one or more intermediaries, by such2173   Person, to the extent such entity’s financial results are required to be included in such Person’s2174   consolidated financial statements under GAAP. Unless otherwise provided, “Subsidiary” shall2175   refer to a Subsidiary of the Borrower.2176   “Successor Company” has the meaning provided in Section 8.04(d).2177   “Support Obligations” means, as to any Person, (a) any obligation, contingent or2178   otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any2179   Indebtedness or other obligation payable or performable by another Person (the “primary2180   obligor”) in any manner, whether directly or indirectly, and including any obligation of such2181   Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or2182   payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or2183   services for the purpose of assuring the obligee in respect of such Indebtedness or other2184   obligation of the payment or performance of such Indebtedness or other obligation, (iii) to2185   maintain working capital, equity capital or any other financial statement condition or liquidity or2186   level of income or cash flow of the primary obligor so as to enable the primary obligor to pay2187   such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any2188   other manner the obligee in respect of such Indebtedness or other obligation of the payment or2189   performance thereof or to protect such obligee against loss in respect thereof (in whole or in part),2190   or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any2191   other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or2192   any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).2193   The amount of any Support Obligations shall be deemed to be an amount equal to the stated or2194   determinable amount of the related primary obligation, or portion thereof, in respect of which2195   such Support Obligation is made or, if not stated or determinable, the maximum reasonably2196   anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.2197   “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit2198   derivative transactions, forward rate transactions, commodity swaps, commodity options,2199   forward commodity contracts, equity or equity index swaps or options, bond or bond price or2200   bond index swaps or options or forward bond or forward bond price or forward bond index2201   transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor2202   transactions, collar transactions, currency swap transactions, cross-currency rate swap2203   transactions, currency options, spot contracts, or any other similar transactions or any2204   combination of any of the foregoing (including any options to enter into any of the foregoing),2205   whether or not any such transaction is governed by or subject to any master agreement, and (b)2206   any and all transactions of any kind, and the related confirmations, that are subject to the terms2207   and conditions of, or governed by, any form of master agreement published by the International2208   Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement,2209   or any other master agreement (any such master agreement, together with any related schedules,2210   a “Master Agreement”), including any such obligations or liabilities under any Master2211   Agreement.2212   “Swap Obligation” means, with respect to any Guarantor, any obligation to pay or2213   perform under any agreement, contract or transaction that constitutes a “swap” within the2214   meaning of section 1a(47) of the Commodity Exchange Act.2215    





 







53   55802528_20   “Swap Termination Value” means, in respect of any one or more Swap Contracts, after2216   taking into account the effect of any legally enforceable netting agreement relating to such Swap2217   Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and2218   termination values determined in accordance therewith, such termination values, and (b) for any2219   date prior to the date referenced in clause (a), the amounts determined as the mark-to-market2220   values for such Swap Contracts, as determined based upon one or more mid-market or other2221   readily available quotations provided by any recognized dealer in such Swap Contracts (which2222   may include a Lender or any Affiliate of a Lender).2223   “Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to2224   Section 2.01(d).2225   “Swingline Lender” means Bank of America, in its capacity as the Swingline Lender,2226   together with any successor in such capacity.2227   “Swingline Loan” has the meaning provided in Section 2.01(d).2228   “Swingline Note” means the promissory note made by the Borrower in favor of the2229   Swingline Lender, evidencing Swingline Loans made by the Swingline Lender, substantially in2230   the form of Exhibit 2.13-2.2231   “Swingline Sublimit” has the meaning provided in Section 2.01(d).2232   “Target” has the meaning provided in the preliminary statements hereto.2233   “Target Material Adverse Effect” means a “Material Adverse Effect” as defined in the2234   Acquisition Agreement.2235   “Taxes” means all present or future taxes, levies, imposts, duties, deductions,2236   withholdings (including backup withholding), assessments, fees or other charges imposed by any2237   Governmental Authority, including any interest, additions to tax or penalties applicable thereto.2238   “Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the2239   same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made2240   by each of the Term Lenders pursuant to Section 2.01(a).2241   “Term Commitment” means, for each Term Lender, the commitment of such Term2242   Lender to make Term Loans hereunder pursuant to Section 2.01(a) in an aggregate principal2243   amount at any one time outstanding not to exceed the amount set forth opposite such Term2244   Lender’s name on Schedule 2.01 under the caption “Term Commitment” or opposite such2245   caption in the Assignment and Assumption pursuant to which such Term Lender becomes a party2246   hereto, as applicable, as such amount may be adjusted from time to time in accordance with the2247   terms of this Credit Agreement.2248   “Term Loan” means an advance made by any Term Lender under the Term Loan2249   Facility.2250    





 







54   55802528_20   “Term Loan Facility” means, (a) at any time on or prior to the Closing Date, the2251   aggregate principal amount of Term Commitments of all Term Lenders at such time and (b) at2252   any time after the Closing Date, the aggregate principal amount of the Term Loans of all Term2253   Lenders outstanding at such time.2254   “Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that2255   has a Term Commitment at such time and (b) at any time after the Closing Date, any Lender that2256   holds Term Loans at such time.2257   “Term Note” means a promissory note made by the Borrower in favor of a Term Lender2258   evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit 2.13-3.2259   “Test Period” means, for any date of determination under this Agreement, the four2260   consecutive fiscal quarters of the Borrower most recently ended as of such date of determination.2261   “Title Agent” has the meaning provided in the definition of Real Estate Collateral2262   Requirements.2263   “Total Assets” means the total assets of the Borrower and the Restricted Subsidiaries on2264   a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the2265   Borrower delivered pursuant to Section 7.01(a) or (b) (and, in the case of any determination2266   relating to any transaction, on a Pro Forma Basis including any property or assets being acquired2267   or disposed of in connection therewith) or, for the period prior to the time any such statements2268   are so delivered pursuant to Section 7.01(a) or (b), the Pro Forma Financial Statements.2269   “Transactions” means, collectively, (a) the Microsemi Acquisition and the other related2270   transactions contemplated by the Acquisition Agreement, together with, for the avoidance of2271   doubt, the funding of any ordinary course working capital needs and working capital adjustments2272   under the Acquisition Agreement, (b) the Pre-Closing Equity Offering, (c) the Refinancing, (d)2273   the entering into of this Credit Agreement and the making of the Loans and other Credit2274   Extensions hereunder.2275   “Transaction Expenses” means any fees or expenses incurred or paid by the Borrower2276   or any of its Subsidiaries in connection with the Transactions (including expenses in connection2277   with close-out fees in connection with the termination of hedging transactions, if any, and2278   payments to officers, employees and directors as change of control payments, severance2279   payments, special or retention bonuses and charges for repurchase or rollover of, or2280   modifications to, stock options and/or restricted stock), this Agreement and the other Credit2281   Documents and the transactions contemplated hereby and thereby.2282   “Treasury Management Agreement” means any agreement governing the provision of2283   treasury or cash management services, including deposit accounts, overnight draft, credit cards,2284   debit cards, p-cards (including purchasing cards and commercial cards), funds transfer,2285   automated clearinghouse, zero balance accounts, returned check concentration, controlled2286   disbursement, lockbox, account reconciliation and reporting and trade finance services and other2287   cash management services.2288    





 







55   55802528_20   “Type” means, with respect to any Revolving Credit Loan, its character as a Base Rate2289   Loan or a Eurocurrency Rate Loan.2290   “UCC” means the Uniform Commercial Code in effect in any applicable jurisdiction2291   from time to time.2292   “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities2293   under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,2294   determined in accordance with the assumptions used for funding the Pension Plan for purposes2295   of Section 430 of the Internal Revenue Code for the applicable plan year.2296   “United States” or “U.S.” means the United States of America.2297   “Unrestricted Subsidiary” means any Subsidiary of the Borrower designated by the2298   Board of Directors of the Borrower as an Unrestricted Subsidiary pursuant to Section 7.142299   subsequent to the Closing Date.2300   “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any2301   date, the number of years obtained by dividing: (i) the sum of the products obtained by2302   multiplying (a) the amount of each then remaining scheduled installment, sinking fund, serial2303   maturity or other required scheduled payments of principal, including payment at final scheduled2304   maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth)2305   that will elapse between such date and the making of such payment; by (ii) the then outstanding2306   principal amount of such Indebtedness; provided that the effects of any prepayments made on2307   such Indebtedness shall be disregarded in making such calculation.2308   “Wholly Owned Subsidiary” means, with respect to any direct or indirect Subsidiary of2309   any Person, that 100% of the Capital Stock with ordinary voting power issued by such2310   Subsidiary (other than directors’ qualifying shares and investments by foreign nationals2311   mandated by applicable Law) is beneficially owned, directly or indirectly, by such Person.2312   “Write-Down and Conversion Powers” means, with respect to any EEA Resolution2313   Authority, the write-down and conversion powers of such EEA Resolution Authority from time2314   to time under the Bail-In Legislation for the applicable EEA Member Country, which write-2315   down and conversion powers are described in the EU Bail-In Legislation Schedule.2316   “Yen” means the lawful currency of Japan.2317   Section 1.02. Interpretive Provisions. With reference to this Credit Agreement and each2318   other Credit Document, unless otherwise specified herein or in such other Credit Document:2319   (a) The definitions of terms herein shall apply equally to the singular and2320   plural forms of the terms defined. Whenever the context may require, any pronoun shall include2321   the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and2322   “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”2323   shall be construed to have the same meaning and effect as the word “shall.” Unless the context2324   requires otherwise, (i) any definition of or reference to any agreement, instrument or other2325   document (including any Organization Document) shall be construed as referring to such2326    





 







56   55802528_20   agreement, instrument or other document as from time to time amended, supplemented or2327   otherwise modified (subject to any restrictions on such amendments, supplements or2328   modifications set forth herein or in any other Credit Document), (ii) any reference herein to any2329   Person shall be construed to include such Person’s successors and assigns, (iii) the words2330   “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any2331   Credit Document, shall be construed to refer to such Credit Document in its entirety and not to2332   any particular provision thereof, (iv) all references in a Credit Document to “Articles,”2333   “Sections,” “Exhibits” and “Schedules” shall be construed to refer to articles and sections of, and2334   exhibits and schedules to, the Credit Document in which such references appear, (v) any2335   reference to any law shall include all statutory and regulatory provisions consolidating,2336   amending, replacing or interpreting such law and any reference to any law or regulation shall,2337   unless otherwise specified, refer to such law or regulation as amended, modified or2338   supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to2339   have the same meaning and effect and to refer to any and all assets and property of whatever2340   kind, real and personal, tangible and intangible, including cash, securities, accounts and contract2341   rights.2342   (b) In the computation of periods of time from a specified date to a later2343   specified date, the word “from” means “from and including”; the words “to” and “until” each2344   mean “to but excluding”; and the word “through” means “to and including.”2345   (c) Section headings herein and in the other Credit Documents are included2346   for convenience of reference only and shall not affect the interpretation of this Credit Agreement2347   or any other Credit Document.2348   (d) For purposes of determining compliance with any Section of Article 8 at2349   any time, in the event that any Lien, Investment, Indebtedness (whether at the time of incurrence2350   or upon application of all or a portion of the proceeds thereof) (subject to the third to last2351   paragraph in Section 8.03), Disposition, Restricted Payment, Affiliate transaction, Contractual2352   Obligation or prepayment of Indebtedness meets the criteria of one or more than one of the2353   categories of transactions permitted pursuant to any clause of such Sections, such transaction (or2354   portion thereof) at any time shall be permitted under one or more of such clauses as determined2355   by the Borrower in its sole discretion at such time.2356   Section 1.03. Accounting Terms and Provisions. All accounting terms not specifically2357   or completely defined herein shall be construed in conformity with, and all financial data2358   (including financial ratios and other financial calculations) required to be submitted pursuant to2359   this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis,2360   as in effect from time to time. Notwithstanding any changes in GAAP after the Closing Date,2361   any lease of the Credit Parties and their Subsidiaries that would be characterized as an operating2362   lease under GAAP in effect on the Closing Date (whether such lease is entered into before or2363   after the Closing Date) shall not constitute Indebtedness, Attributable Indebtedness or a2364   Capitalized Lease under this Agreement or any Credit Document as a result of such changes in2365   GAAP.2366    





 







57   55802528_20   (a) Notwithstanding any provision herein to the contrary, determinations of (i)2367   the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance2368   with the Financial Covenants shall be made on a Pro Forma Basis.2369   (b) If at any time after the Closing Date any change in GAAP or in the2370   consistent application thereof would affect the operation of any provision set forth in any Credit2371   Document, and either the Borrower or the Required Lenders requests an amendment to eliminate2372   the effect of any such change, regardless whether such request is given before or after such2373   change in GAAP or in the consistent application thereof, then until such request shall have been2374   withdrawn or such provision amended in accordance herewith, (i) such provision shall continue2375   to be interpreted in accordance with GAAP prior to such change therein and (ii) the Borrower2376   will provide, or cause to be provided, to the Administrative Agent and the Lenders, financial2377   statements and related certificates and documents required hereunder or hereby as reasonably2378   requested setting forth a reconciliation between calculations of such ratios or requirements made2379   before and after giving effect to such changes in GAAP.2380   (c) With respect to any subject transaction that was permitted under any2381   provision of this Agreement by reference to a basket based on a percentage of Total Assets, the2382   permissibility of such subject transaction shall not be affected by any subsequent fluctuations in2383   Total Assets.2384   Section 1.04. Rounding. Any financial ratios required to be maintained pursuant to this2385   Credit Agreement shall be calculated by dividing the appropriate component by the other2386   component, carrying the result to one place more than the number of places by which such ratio2387   is expressed herein and rounding the result up or down to the nearest number (with a rounding-2388   up if there is no nearest number).2389   Section 1.05. Times of Day. Unless otherwise specified, all references herein to times of2390   day shall be references to Eastern time (daylight or standard, as applicable).2391   Section 1.06. Letter of Credit Amounts. Unless otherwise specified herein all references2392   herein to the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent2393   of the stated amount of such Letter of Credit in effect at such time; provided, however, that with2394   respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related2395   thereto, provides for one or more automatic increases in the stated amount thereof, the amount of2396   such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount2397   of such Letter of Credit after giving effect to all such increases, whether or not such maximum2398   stated amount is in effect at such time.2399   Section 1.07. Pro Forma Calculations.2400   (a) Notwithstanding anything to the contrary herein, financial ratios and tests,2401   including the Consolidated Cash Interest Coverage Ratio and the Consolidated Total Net2402   Leverage Ratio and compliance with covenants determined by reference to Total Assets, shall be2403   calculated (whether or not the applicable provision references that such calculation is to be done2404   on a “Pro Forma Basis” or giving “Pro Forma Effect” or any other similar phrase) in the manner2405   prescribed by this Section 1.07; provided that notwithstanding anything to the contrary herein,2406    





 







58   55802528_20   when calculating (A) any such ratio for the purpose of the definition of Applicable Percentage,2407   any mandatory prepayment provision hereunder or compliance with Section 8.11, the events set2408   forth in Sections 1.07(b), 1.07(c), 1.07(d) and 1.07(e) below that occurred subsequent to the end2409   of the applicable Test Period shall not be given pro forma effect and (B) any such ratio or test for2410   purposes of the incurrence of any Indebtedness, cash and Cash Equivalents resulting from the2411   incurrence of any such Indebtedness shall be excluded from the pro forma calculation of any2412   applicable ratio or test. In addition, whenever a financial ratio or test is to be calculated on a Pro2413   Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or2414   test shall be deemed to be a reference to, and shall be based on, the most recently ended Test2415   Period for which financial statements of the Borrower have been delivered pursuant to Section2416   7.01(a) or (b) (it being understood that for purposes of determining pro forma compliance with2417   Section 8.11, if no Test Period with an applicable level cited in Section 8.11 has passed, the2418   applicable level shall be the level for the first Test Period cited in Section 8.11 with an indicated2419   level).2420   (b) For purposes of calculating any financial ratio or test or compliance with2421   any covenant determined by reference to Total Assets, Specified Transactions (and the2422   incurrence or repayment of any Indebtedness in connection therewith) that have been2423   consummated (i) during the applicable Test Period or (ii) if applicable as described in clause (a)2424   above, subsequent to such Test Period and prior to or simultaneously with the event for which2425   the calculation of any such ratio is made, in either case, shall be calculated on a pro forma basis2426   assuming that all such Specified Transactions (and any increase or decrease in Total Assets and2427   the component financial definitions used therein attributable to any Specified Transaction) had2428   occurred on the first day of the applicable Test Period (or in the case of Total Assets, on the last2429   day of the applicable Test Period). If since the beginning of any applicable Test Period any2430   Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or2431   consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning2432   of such Test Period shall have made any Specified Transaction that would have required2433   adjustment pursuant to this Section 1.07, then such financial ratio or test (or Total Assets) shall2434   be calculated to give pro forma effect thereto in accordance with this Section 1.07.2435   (c) Whenever pro forma effect is to be given to a Specified Transaction, the2436   pro forma calculations shall be made in good faith by a responsible financial or accounting2437   officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate”2438   cost savings, operating expense reductions and synergies resulting from or relating to any2439   Specified Transaction (including the Transactions) which is being given pro forma effect that2440   have been realized or are expected to be realized and for which the actions necessary to realize2441   such cost savings, operating expense reductions and synergies are taken, committed to be taken2442   or with respect to which substantial steps have been taken or are expected to be taken (in the2443   good faith determination of the Borrower) (calculated on a pro forma basis as though such cost2444   savings, operating expense reductions and synergies had been realized on the first day of such2445   period and as if such cost savings, operating expense reductions and synergies were realized2446   during the entirety of such period and “run-rate” means the full recurring benefit for a period2447   that is associated with any action taken, committed to be taken or with respect to which2448   substantial steps have been taken or are expected to be taken net of the amount of actual benefits2449   realized during such period from such actions, and any such adjustments shall be included in the2450   initial pro forma calculations of any financial ratios or tests (and in respect of any subsequent pro2451    





 







59   55802528_20   forma calculations in which such Specified Transaction is given pro forma effect) and during any2452   applicable subsequent Test Period in which the effects thereof are expected to be realized)2453   relating to such Specified Transaction; provided that (A) such amounts are reasonably2454   identifiable and factually supportable in the good faith judgment of the Borrower, (B) such2455   actions are taken, committed to be taken or with respect to which substantial steps have been2456   taken or are expected to be taken no later than twelve (12) months after the date of such2457   Specified Transaction, and (C) no amounts shall be added pursuant to this clause (c) to the extent2458   duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA2459   (or any other components thereof), whether through a pro forma adjustment or otherwise, with2460   respect to such period; provided, further, that any increase to Consolidated EBITDA as a result2461   of cost savings, operating expense reductions and synergies pursuant to this Section 1.07(c) shall2462   be subject to the limitations set forth in the final proviso of clause (vii) of the definition of2463   Consolidated EBITDA.2464   (d) In the event that the Borrower or any Restricted Subsidiary incurs2465   (including by assumption or guarantees) or repays (including by redemption, repayment,2466   retirement or extinguishment) any Indebtedness included in the calculations of the Consolidated2467   Cash Interest Coverage Ratio, the Consolidated Total Net Leverage Ratio or any other financial2468   ratio or test subsequent to the end of the applicable Test Period and prior to or simultaneously2469   with the event for which the calculation of any such ratio or test is made, then the Consolidated2470   Cash Interest Coverage Ratio, the Consolidated Total Net Leverage Ratio or other financial ratio2471   or test, as applicable, shall be calculated giving pro forma effect to such incurrence or repayment2472   of Indebtedness, to the extent required, as if the same had occurred on the last day of the2473   applicable Test Period (except in the case of the Consolidated Cash Interest Coverage Ratio or2474   other similar interest or fixed charge test or ratio, in which case such incurrence, assumption,2475   guarantee, redemption, repayment, retirement or extinguishment will be given effect as if the2476   same had occurred on the first day of the applicable Test Period); provided that Indebtedness2477   incurred, repaid or prepaid under any revolving credit facility shall be excluded from the2478   application of this clause (c) unless such incurrence, repayment or prepayment (a) shall be in2479   connection, or substantially concurrent, with a Specified Transaction or (b) in the case of a2480   repayment or prepayment, such Indebtedness has been permanently repaid and not replaced.2481   (e) In connection with any action being taken solely in connection with a2482   Limited Condition Transaction, for purposes of:2483   (i) determining compliance with any provision of this Agreement2484   (other than the Financial Covenants) which requires the calculation of any2485   financial ratio or test, including the Consolidated Total Net Leverage Ratio and2486   Consolidated Cash Interest Coverage Ratio; or2487   (ii) testing availability under baskets set forth in this Agreement2488   (including baskets measured as a percentage of Total Assets and baskets subject2489   to Default and Event of Default conditions));2490   in each case, at the option of the Borrower (the Borrower’s election to exercise such option in2491   connection with any Limited Condition Transaction, an “LCT Election”), the date of2492   determination of whether any such action is permitted hereunder (or any requirement or2493    





 







60   55802528_20   condition therefor is complied with or satisfied (including as to the absence of any continuing2494   Default or Event of Default) shall be deemed to be the date the definitive agreements for such2495   Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving Pro2496   Forma Effect to the Limited Condition Transaction and the other transactions to be entered into2497   in connection therewith (including any incurrence of Indebtedness and the use of proceeds2498   thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to2499   the LCT Test Date, the Borrower or any of its Restricted Subsidiaries would have been permitted2500   to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket2501   (and any related requirements and conditions), such ratio, test or basket (and any related2502   requirements and conditions) shall be deemed to have been complied with (or satisfied). For the2503   avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests,2504   baskets or requirements or conditions for which compliance was determined or tested as of the2505   LCT Test Date are exceeded (or not satisfied) as a result of fluctuations in any such ratio, test or2506   basket (or due to other intervening events in the case of other requirements or conditions),2507   including due to fluctuations in Consolidated EBITDA or Total Assets of the Borrower or the2508   Person subject to such Limited Condition Transaction, at or prior to the consummation of the2509   relevant transaction or action, such baskets, tests, ratios or requirements or conditions will not be2510   deemed to have been exceeded (or not satisfied) as a result of such fluctuations (or intervening2511   events). If the Borrower has made an LCT Election for any Limited Condition Transaction, then2512   in connection with any calculation of any ratio, test or basket availability with respect to the2513   incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any2514   Investment permitted hereunder, mergers, the conveyance, lease or other transfer of all or2515   substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance2516   or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (a2517   “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the2518   date on which such Limited Condition Transaction is consummated or the date that the definitive2519   agreement or irrevocable notice for such Limited Condition Transaction is terminated or expires2520   without consummation of such Limited Condition Transaction, for purposes of determining2521   whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or2522   basket shall be required to be satisfied on a Pro Forma Basis (i) assuming such Limited2523   Condition Transaction and other transactions in connection therewith (including any incurrence2524   of Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming such2525   Limited Condition Transaction and other transactions in connection therewith (including any2526   incurrence of Indebtedness and the use of proceeds thereof) have not been consummated.2527   (f) If any Indebtedness bears a floating rate of interest and is being given pro2528   forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the2529   date of the event for which the calculation of the Consolidated Cash Interest Coverage Ratio is2530   made had been the applicable rate for the entire period (taking into account any interest hedging2531   arrangements applicable to such Indebtedness); provided that, in the case of repayment of any2532   Indebtedness, to the extent actual interest related thereto was included during all or any portion2533   of the applicable Test Period, the actual interest may be used for the applicable portion of such2534   Test Period. Interest on a Capitalized Lease shall be deemed to accrue at an interest rate2535   reasonably determined by a Responsible Officer of the Borrower to be the rate of interest2536   implicit in such Capitalized Lease in accordance with GAAP. Interest on Indebtedness that may2537   optionally be determined at an interest rate based upon a factor of a prime or similar rate, a2538   London interbank offered rate, or other rate, shall be determined to have been based upon the2539    





 







61   55802528_20   rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or2540   Restricted Subsidiary may designate.2541   Section 1.08. Timing of Payment and Performance. When the payment of any2542   obligation or the performance of any covenant, duty or obligation is stated to be due or2543   performance required on a day which is not a Business Day, the date of such payment (other than2544   as described in the definition of “Interest Period”) or performance shall extend to the2545   immediately succeeding Business Day and such extension shall be reflected in the computation2546   of interest or fees, as the case may be.2547   Section 1.09. Currency Generally. For purposes of determining compliance with2548   Sections 8.01, 8.02, 8.03 and 8.06 with respect to any amount of Indebtedness or Investment in a2549   currency other than Dollars, no Default shall be deemed to have occurred solely as a result of2550   changes in rates of currency exchange occurring after the time such Indebtedness or Investment2551   is incurred (so long as such Indebtedness or Investment, at the time incurred, made or acquired,2552   was permitted hereunder).2553   For purposes of calculating the Total Net Leverage Ratio or Consolidated Cash Interest2554   Coverage Ratio in connection with determining compliance with the Financial Covenants, or2555   otherwise calculating the Consolidated Total Net Leverage Ratio on any date of determination,2556   amounts denominated in a currency other than Dollars will be translated into Dollars at the2557   currency exchange rates used in the Borrower’s latest financial statements delivered pursuant to2558   Section 7.01(a) or (b), and will, in the case of Indebtedness, reflect the currency translation2559   effects, determined in accordance with GAAP, of Swap Contracts permitted hereunder for2560   currency exchange risks with respect to the applicable currency in effect on the date of2561   determination of the Dollar Equivalent of such Indebtedness.2562   Section 1.10. Exchange Rates; Currency Equivalents.2563   (a) The L/C Issuer, as applicable, shall determine the Spot Rates as of each2564   Revaluation Date to be used for calculating Dollar Equivalent amounts of L/C Credit Extensions2565   and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall2566   become effective as of such Revaluation Date and shall be the Spot Rates employed in2567   converting any amounts between the applicable currencies until the next Revaluation Date to2568   occur. Except for purposes of financial statements delivered by Credit Parties hereunder or2569   calculating financial covenants hereunder or except as otherwise provided herein, the applicable2570   amount of any currency (other than Dollars) for purposes of the Credit Documents shall be such2571   Dollar Equivalent amount as so determined by the L/C Issuer.2572   (b) Wherever in this Agreement in the issuance, amendment or extension of a2573   Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in2574   Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall2575   be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest2576   unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by2577   the L/C Issuer, as the case may be.2578   Section 1.11. Additional Alternative Currencies.2579    





 







62   55802528_20   (a) The Borrower may from time to time request that Letters of Credit be2580   issued in a currency other than those specifically listed in the definition of “Alternative2581   Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is2582   readily available and freely transferable and convertible into Dollars. In the case of any such2583   request, such request shall be subject to the approval of the L/C Issuer.2584   (b) Any such request shall be made to the Administrative Agent not later than2585   11:00 a.m., ten (10) Business Days prior to the date of the desired L/C Credit Extension (or such2586   other time or date as may be agreed by the L/C Issuer in its sole discretion). The Administrative2587   Agent shall promptly notify the L/C Issuer thereof. The L/C Issuer shall notify the2588   Administrative Agent, not later than 11:00 a.m., five (5) Business Days after receipt of such2589   request whether it consents, in its sole discretion, to the issuance of Letters of Credit in such2590   requested currency.2591   (c) Any failure by the L/C Issuer to respond to such request within the time2592   period specified in the preceding sentence shall be deemed to be a refusal by the L/C Issuer to2593   permit the Letters of Credit to be issued in such requested currency. If the L/C Issuer consents to2594   the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so2595   notify the Borrower and to the extent the definition of Eurocurrency Rate reflects the appropriate2596   interest rate for such currency or has been amended to reflect the appropriate rate for such2597   currency, such currency shall thereupon be deemed for all purposes to be an Alternative2598   Currency, for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail2599   to obtain consent to any request for an additional currency under this Section 1.11, the2600   Administrative Agent shall promptly so notify the Borrower.2601   Section 1.12. Cumulative Equity Credit Transactions. If more than one action occurs on2602   any given date the permissibility of the taking of which is determined hereunder by reference to2603   the amount of the Cumulative Equity Credit immediately prior to the taking of such action, the2604   permissibility of the taking of each such action shall be determined independently and in no2605   event may any two or more such actions be treated as occurring simultaneously.2606   Section 1.13. References to Agreements, Laws, Etc. Unless otherwise expressly2607   provided herein, (a) references to Organization Documents, agreements (including the Credit2608   Documents) and other contractual instruments shall be deemed to include all subsequent2609   amendments, restatements, amendment and restatements, extensions, supplements and other2610   modifications thereto, but only to the extent that such amendments, restatements, amendment2611   and restatements, extensions, supplements and other modifications are permitted by the Credit2612   Documents; and (b) references to any Law (including by succession of comparable successor2613   laws) shall include all statutory and regulatory provisions consolidating, amending, replacing,2614   supplementing or interpreting such Law.2615   ARTICLE 22616   COMMITMENTS AND CREDIT EXTENSIONS2617   Section 2.01. Commitments. Subject to the terms and conditions set forth herein:2618    





 







63   55802528_20   (a) Term Loans. Each Term Lender agrees to make a single loan to the2619   Borrower in Dollars on the Closing Date in an amount not to exceed such Term Lender’s Term2620   Commitment. The Term Borrowing shall consist of Term Loans made simultaneously by the2621   Term Lenders in accordance with their respective Aggregate Commitment Percentages of the2622   Term Loan Facility. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may2623   not be reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans as further2624   provided herein.2625   (b) Revolving Credit Loans. During the Commitment Period, each Revolving2626   Credit Lender severally agrees to make revolving credit loans (the “Revolving Credit Loans”)2627   to the Borrower in Dollars, from time to time, on any Business Day; provided that after giving2628   effect to any such Revolving Credit Loan, (i) with regard to the Revolving Credit Lenders2629   collectively, the Outstanding Amount of Revolving Credit Obligations shall not exceed2630   $100,000,000 (as such amount may be increased or decreased in accordance with the provisions2631   hereof, the “Aggregate Revolving Credit Committed Amount”) and (ii) with regard to each2632   Revolving Credit Lender individually, such Revolving Credit Lender’s Aggregate Commitment2633   Percentage of the Outstanding Amount of Revolving Credit Obligations shall not exceed its2634   Revolving Credit Commitment; provided, further, that on the Closing Date not more than2635   $10,000,000 may be borrowed to finance (x) the Transactions, (y) Transaction Expenses2636   (including OID and upfront fees) and (z) ordinary course working capital needs and working2637   capital adjustments under the Acquisition Agreement. Revolving Credit Loans may consist of2638   Base Rate Loans, Eurocurrency Rate Loans, or a combination thereof, as the Borrower may2639   request, and may be repaid and reborrowed in accordance with the provisions hereof.2640   (c) Letters of Credit. During the Commitment Period, (i) the L/C Issuer2641   agrees (A) to issue Letters of Credit denominated in Dollars or in one or more Alternative2642   Currencies for the account of the Borrower or any of its Restricted Subsidiaries on any Business2643   Day, (B) to amend or extend Letters of Credit previously issued hereunder, and (C) to honor2644   drawings under Letters of Credit; and (ii) the Revolving Credit Lenders severally agree to2645   purchase from the L/C Issuer a participation interest in the Existing Letters of Credit and Letters2646   of Credit issued hereunder in an amount equal to such Revolving Credit Lender’s Aggregate2647   Commitment Percentage thereof; provided that (x) the Outstanding Amount of L/C Obligations2648   shall not exceed $10,000,000 (as such amount may be decreased in accordance with the2649   provisions hereof, the “L/C Sublimit”), (y) the Outstanding Amount of Revolving Credit2650   Obligations shall not exceed the Aggregate Revolving Credit Committed Amount, and (z) with2651   regard to each Revolving Credit Lender individually, such Revolving Credit Lender’s Aggregate2652   Commitment Percentage of the Outstanding Amount of Revolving Credit Obligations shall not2653   exceed its Revolving Credit Commitment. Subject to the terms and conditions hereof, the2654   Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the2655   Borrower may obtain Letters of Credit to replace Letters of Credit that have expired or that have2656   been drawn upon and reimbursed. Existing Letters of Credit shall be deemed to have been2657   issued hereunder and shall be subject to and governed by the terms and conditions hereof.2658   (d) Swingline Loans. During the Commitment Period, the Swingline Lender2659   agrees to make revolving credit loans (the “Swingline Loans”) to the Borrower in Dollars on2660   any Business Day; provided that (i) the Outstanding Amount of Swingline Loans shall not2661   exceed $10,000,000 (as such amount may be decreased in accordance with the provisions hereof,2662    





 







64   55802528_20   the “Swingline Sublimit”) and (ii) with respect to the Revolving Credit Lenders collectively, the2663   Outstanding Amount of Revolving Credit Obligations shall not exceed the Aggregate Revolving2664   Credit Committed Amount; provided further that no Swingline Loans may be made on the2665   Closing Date. Swingline Loans shall be comprised solely of Base Rate Loans, and may be2666   repaid and reborrowed in accordance with the provisions hereof. Immediately upon the making2667   of a Swingline Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably2668   and unconditionally agrees to, purchase from the Swingline Lender a participation interest in2669   such Swingline Loan in an amount equal to the product of such Revolving Credit Lender’s2670   Aggregate Commitment Percentage thereof; provided that the participation interest shall not be2671   funded except on demand as provided in Section 2.04(b)(ii).2672   Section 2.02. Borrowings, Conversions and Continuations2673   (a) Each Borrowing, each conversion of Loans from one Type to the other,2674   and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s2675   irrevocable notice to the Administrative Agent by (A) telephone, or (B) a Loan Notice; provided2676   that any telephonic notice by the Borrower must be confirmed promptly by delivery to the2677   Administrative Agent of a Loan Notice; provided, further, that the notice in respect of the initial2678   Credit Extension, or in connection with any Acquisition or other transaction permitted under this2679   Agreement, may be conditioned on the closing of the Microsemi Acquisition or such Acquisition2680   or other transaction, as applicable. Each such notice must be received by the Administrative2681   Agent not later than noon, (A) with respect to Eurocurrency Rate Loans or any conversion of2682   Eurocurrency Rate Loans to Base Rate Loans, three Business Days prior to the requested date2683   thereof and (B) with respect to Base Rate Loans, on the requested date of, any Borrowing,2684   conversion or continuation.2685   (b) Each telephonic notice by the Borrower pursuant to this Section 2.02 must2686   be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,2687   appropriately completed and signed by a Responsible Officer of the Borrower. Except as2688   provided in Sections 2.03(c) and 2.04(b) each Borrowing, conversion or continuation shall be in2689   a principal amount of (x) with respect to Eurocurrency Rate Loans, $1,000,000 or a whole2690   multiple of $1,000,000 in excess thereof or (y) with respect to Base Rate Loans, $500,000 or a2691   whole multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written)2692   shall specify (i) whether such request is for a Term Borrowing, a Revolving Credit Borrowing, a2693   conversion or a continuation, (ii) the requested date of such Borrowing, conversion or2694   continuation (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,2695   converted or continued, (iv) the Class and Type of Loans to be borrowed, converted or continued2696   and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower2697   fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice2698   requesting a conversion or continuation, then the applicable Loans shall be made as, or converted2699   to, Eurocurrency Rate Loans with an Interest Period of one month. If the Borrower requests a2700   Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any Loan Notice,2701   but fails to specify an Interest Period, the Interest Period will be deemed to be one month.2702   (c) Following its receipt of a Loan Notice, the Administrative Agent shall2703   promptly notify each Appropriate Lender of the amount of its pro rata share of the applicable2704   Loans. In the case of a Borrowing, each Appropriate Lender shall make the amount of its Loan2705    





 







65   55802528_20   available to the Administrative Agent in immediately available funds at the Administrative2706   Agent’s Office not later than 2:00 p.m., on the Business Day specified in the applicable Loan2707   Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, on the2708   Closing Date, Section 5.01), the Administrative Agent shall make all funds so received available2709   to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the2710   account of the Borrower on the books of the Administrative Agent with the amount of such funds2711   or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and2712   reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if,2713   on the date of any Revolving Credit Borrowing there are Swingline Loans or LC Borrowings2714   outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of2715   any such L/C Borrowing, second, to the payment in full of any such Swingline Loans, and third,2716   to the Borrower as provided above.2717   (d) Except as otherwise provided herein, without the consent of the applicable2718   Required Facility Lenders, (i) a Eurocurrency Rate Loan may be continued or converted only on2719   the last day of an Interest Period for such Eurocurrency Rate Loan and (ii) any conversion into,2720   or continuation as, a Eurocurrency Rate Loan may be made only if the conditions to Credit2721   Extensions in Section 5.02 have been satisfied. During the existence of a Default or Event of2722   Default, (x) no Loan may be requested as, converted to or continued as a Eurocurrency Rate2723   Loan and (y) at the request of the applicable Required Facility Lenders, any outstanding2724   Eurocurrency Rate Loan shall be converted to a Base Rate Loan on the last day of the Interest2725   Period with respect thereto.2726   (e) The Administrative Agent shall promptly notify the Borrower and the2727   Appropriate Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate2728   Loans upon determination of such interest rate. The determination of the Eurocurrency Rate by2729   the Administrative Agent shall be conclusive in the absence of manifest error. At any time that2730   Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the2731   Appropriate Lenders of any change in Bank of America’s prime rate used in determining the2732   Base Rate promptly following the public announcement of such change.2733   (f) After giving effect to all Borrowings, all conversions of Loans from one2734   Type to the other, and all continuations of Loans as the same Type, there shall not be more than2735   ten Interest Periods in effect with respect to the Facilities; provided that after the establishment2736   of any new Class of Loans pursuant to an Incremental Amendment, Refinancing Amendment or2737   Extension Amendment, the number of Interest Periods otherwise permitted by this2738   Section 2.02(f) shall increase by three (3) Interest Periods for each applicable Class so2739   established.2740   Section 2.03. Additional Provisions with Respect to Letters of Credit.2741   (a) Obligation to Issue or Amend.2742   (i) The L/C Issuer shall not issue any Letter of Credit if:2743   (A) except as otherwise provided in Section 2.03(b)(iii), the2744   expiry date would occur more than (I) in the case of a standby Letter of2745    





 







66   55802528_20   Credit, one year from the date of issuance or (II) in the case of a2746   commercial Letter of Credit, 180 days from the date of issuance, in each2747   case unless the Required Revolving Credit Lenders and the L/C Issuer2748   shall have otherwise given their approval;2749   (B) the expiry date of any such Letter of Credit would occur2750   after the L/C Expiration Date, unless the Revolving Credit Lenders and the2751   L/C Issuer shall have otherwise given their approval or the Outstanding2752   Amount of L/C Obligations in respect of such requested Letter of Credit2753   has been Cash Collateralized or back-stopped by a letter of credit2754   reasonably satisfactory to the applicable L/C Issuer; provided that once2755   such Letter of Credit is fully Cash Collateralized, the other Lenders are2756   released from liability as a Participant; or2757   (C) any such Letter of Credit is to be used for purposes other2758   than those permitted under Section 7.11, unless the Required Lenders shall2759   have otherwise given their approval.2760   (ii) The L/C Issuer shall not be under any obligation to issue any Letter2761   of Credit if:2762   (A) any order, judgment or decree of any Governmental2763   Authority or arbitrator shall by its terms purport to enjoin or restrain the2764   L/C Issuer from issuing such Letter of Credit, or any Law applicable to the2765   L/C Issuer or any request or directive (whether or not having the force of2766   law) from any Governmental Authority with jurisdiction over the L/C2767   Issuer shall prohibit, or request that the L/C Issuer refrain from, the2768   issuance of letters of credit generally or such Letter of Credit in particular2769   or shall impose upon the L/C Issuer with respect to such Letter of Credit2770   any restriction, reserve or capital requirement (for which the L/C Issuer is2771   not otherwise compensated hereunder) not in effect on the Closing Date,2772   or shall impose upon the L/C Issuer any unreimbursed loss, cost or2773   expense that was not applicable on the Closing Date and that the L/C2774   Issuer in good faith deems material to it;2775   (B) the issuance of such Letter of Credit would violate any Law2776   or one or more policies of the L/C Issuer;2777   (C) except as otherwise agreed by the L/C Issuer and the2778   Administrative Agent, such Letter of Credit is in an initial stated amount2779   less than $100,000, in the case of a commercial Letter of Credit, or2780   $200,000, in the case of a standby Letter of Credit;2781   (D) such Letter of Credit is to be denominated in a currency2782   other than Dollars or an Alternative Currency;2783   (E) such Letter of Credit contains provisions for automatic2784   reinstatement of the stated amount after any drawing thereunder;2785    





 







67   55802528_20   (F) any Revolving Credit Lender is at such time a Defaulting2786   Lender, unless Cash Collateral or other Adequate Assurance shall have2787   been provided, including arrangements to eliminate the L/C Issuer’s actual2788   or potential Fronting Exposure (after giving effect to Section 2.17(a)(vii))2789   with respect to the Defaulting Lender arising from either the Letter of2790   Credit then proposed to be issued or that Letter of Credit and all other L/C2791   Obligations as to which the L/C Issuer has actual or potential Fronting2792   Exposure, as it may elect in its sole discretion; or2793   (G) except with respect to any Letter of Credit to be issued in2794   Dollars, the L/C Issuer does not as of the issuance date of the requested2795   Letter of Credit issue Letters of Credit in the requested currency.2796   (iii) The L/C Issuer shall not amend any Letter of Credit if the L/C2797   Issuer would not be permitted at such time to issue such Letter of Credit in its2798   amended form under the terms hereof.2799   (iv) The L/C Issuer shall not be under any obligation to amend any2800   Letter of Credit if:2801   (A) the L/C Issuer would have no obligation at such time to2802   issue such Letter of Credit in its amended form under the terms hereof; or2803   (B) the beneficiary of such Letter of Credit does not accept the2804   proposed amendment to such Letter of Credit.2805   (v) The L/C Issuer shall act on behalf of the Revolving Credit Lenders2806   with respect to any Letter of Credit issued by it and the documents associated2807   therewith. The L/C Issuer shall have all of the benefits and immunities (A)2808   provided to the Administrative Agent in Article 10 with respect to any acts taken2809   or omissions suffered by the L/C Issuer in connection with Letters of Credit2810   issued by them or proposed to be issued by it and Issuer Documents pertaining to2811   such Letters of Credit as fully as if the term “Administrative Agent” as used in2812   Article 10 included the L/C Issuer with respect to such acts or omissions, and (B)2813   as additionally provided herein with respect to the L/C Issuer.2814   (b) Procedures for Issuance and Amendment; Auto-Extension Letters of2815   Credit.2816   (i) Each Letter of Credit shall be issued or amended, as the case may2817   be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to2818   the Administrative Agent) in the form of an L/C Application appropriately2819   completed and signed by a Responsible Officer of the Borrower. L/C2820   Applications must be received by the L/C Issuer and the Administrative Agent not2821   later than 12:00 p.m. at least two Business Days (or, in the case of a Letter of2822   Credit denominated in an Alternative Currency, three Business Days) prior to the2823   proposed issuance date or date of amendment, as the case may be, or such later2824   date and time as the L/C Issuer and the Administrative Agent may agree in a2825    





 







68   55802528_20   particular instance in their sole discretion. In the case of a request for an initial2826   issuance of a Letter of Credit, such L/C Application shall specify in form and2827   detail reasonable satisfactory to the L/C Issuer: (A) the proposed issuance date of2828   the requested Letter of Credit (which shall be a Business Day); (B) the amount2829   and currency thereof and in the absence of specification of currency shall be2830   deemed a request for a Letter of Credit denominated in Dollars; (C) the expiry2831   date thereof; (D) the name and address of the beneficiary thereof; (E) the2832   documents to be presented by such beneficiary in case of any drawing thereunder;2833   (F) the full text of any certificate to be presented by such beneficiary in case of2834   any drawing thereunder; and (G) such other matters as the L/C Issuer may2835   reasonably require. In the case of a request for an amendment of any outstanding2836   Letter of Credit, such L/C Application shall specify in form and detail reasonable2837   satisfactory to the L/C Issuer (I) the Letter of Credit to be amended; (II) the2838   proposed date of amendment thereof (which shall be a Business Day); (III) the2839   nature of the proposed amendment; and (IV) such other matters as the L/C Issuer2840   may reasonably require. Additionally, the Borrower shall furnish to the L/C2841   Issuer and the Administrative Agent such other documents and information2842   pertaining to such requested Letter of Credit issuance or amendment, including2843   any Issuer Documents, as the L/C Issuer or the Administrative Agent may2844   reasonably require.2845   (ii) Promptly after receipt of any L/C Application, the L/C Issuer will2846   confirm (by telephone or in writing) with the Administrative Agent that the2847   Administrative Agent has received a copy of such L/C Application from the2848   Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a2849   copy thereof. Unless the L/C Issuer has received written notice from the2850   Administrative Agent, any Lender or any Credit Party, at least one Business Day2851   prior to the requested date of issuance or amendment of the applicable Letter of2852   Credit, that one or more applicable conditions contained in Article 5 shall not then2853   be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall,2854   on the requested date, issue a Letter of Credit for the account of the Borrower (or2855   any of its Restricted Subsidiaries) or enter into the applicable amendment, as the2856   case may be, in each case in accordance with the L/C Issuer’s usual and2857   customary business practices. Immediately upon the issuance of each Letter of2858   Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably2859   and unconditionally agrees to, purchase from the L/C Issuer a risk participation in2860   such Letter of Credit in an amount equal to such Revolving Credit Lender’s2861   Aggregate Commitment Percentage thereof.2862   (iii) If the Borrower so requests in an L/C Application, the L/C Issuer2863   shall agree to issue a standby Letter of Credit that has automatic extension2864   provisions (each, an “Auto-Extension Letter of Credit”); provided that any such2865   Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such2866   extension at least once in each twelve-month period (commencing with the date of2867   issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof2868   not later than a day (the “Non-Extension Notice Date”) in each such twelve-2869   month period to be agreed upon at the time such Letter of Credit is issued. Unless2870    





 







69   55802528_20   otherwise directed by the L/C Issuer, the Borrower shall not be required to make a2871   specific request to the L/C Issuer for any such extension. Once an Auto-2872   Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be2873   deemed to have authorized (but may not require) the L/C Issuer to permit the2874   extension of such Letter of Credit at any time to an expiry date not later than the2875   L/C Expiration Date; provided, however, that the L/C Issuer shall not permit any2876   such extension if (1) the L/C Issuer has determined that it would not be permitted2877   or would have no obligation at such time to issue such Letter of Credit in its2878   revised form (as extended) under the terms hereof (by reason of the provisions of2879   Section 2.03(a) or otherwise), or (2) it has received notice (which may be by2880   telephone or in writing) on or before the day that is five Business Days before the2881   Non-Extension Notice Date (x) from the Administrative Agent that the Required2882   Revolving Credit Lenders have elected not to permit such extension or (y) from2883   the Administrative Agent, any Revolving Credit Lender or the Borrower that one2884   or more of the applicable conditions specified in Section 5.02 is not then satisfied,2885   and in each case directing the L/C Issuer not to permit such extension.2886   (iv) If the Borrower so requests in any L/C Application, the L/C Issuer2887   may, in its sole and absolute discretion, agree to issue a Letter of Credit that2888   permits the automatic reinstatement of all or a portion of the stated amount2889   thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of2890   Credit”). Unless otherwise directed by the L/C Issuer, the Borrower shall not be2891   required to make a specific request to the L/C Issuer to permit such reinstatement.2892   Once an Auto-Reinstatement Letter of Credit has been issued, except as provided2893   in the following sentence, the Revolving Credit Lenders shall be deemed to have2894   authorized (but may not require) the L/C Issuer to reinstate all or a portion of the2895   stated amount thereof in accordance with the provisions of such Letter of Credit.2896   Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit2897   permits the L/C Issuer to decline to reinstate all or any portion of the stated2898   amount thereof after a drawing thereunder by giving notice of such non-2899   reinstatement within a specified number of days after such drawing (the “Non-2900   Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if2901   it has received a notice (which may be by telephone or in writing) on or before the2902   day that is five Business Days before the Non-Reinstatement Deadline (A) from2903   the Administrative Agent that the Required Facility Lenders have elected not to2904   permit such reinstatement or (B) from the Administrative Agent, any Revolving2905   Credit Lender or the Borrower that one or more of the applicable conditions2906   specified in Section 5.02 is not then satisfied (treating such reinstatement as an2907   L/C Credit Extension for purposes of this clause) and, in each case, directing the2908   L/C Issuer not to permit such reinstatement.2909   (v) Promptly after its delivery of any Letter of Credit or any2910   amendment to a Letter of Credit to an advising bank with respect thereto or to the2911   beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the2912   Administrative Agent a true and complete copy of such Letter of Credit or2913   amendment.2914    





 







70   55802528_20   (vi) The L/C Issuer will provide to the Administrative Agent, at least2915   quarterly and more frequently upon request of the Administrative Agent, a2916   summary report on the Letters of Credit it has issued, including, among other2917   things, on whose account each Letter of Credit is issued and each Letter of2918   Credit’s beneficiary, face amount and expiry date.2919   (c) Drawings and Reimbursements; Funding of Participations.2920   (i) Upon any drawing under any Letter of Credit, the L/C Issuer shall2921   notify the Borrower and the Administrative Agent thereof. In the case of a Letter2922   of Credit denominated in an Alternative Currency, the Borrower shall reimburse2923   the L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its2924   option) shall have specified in such notice that it will require reimbursement in2925   Dollars, or (B) in the absence of any such requirement for reimbursement in2926   Dollars, the Borrower shall have notified the L/C Issuer promptly following2927   receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer in2928   Dollars. In the case of any such reimbursement in Dollars of a drawing under a2929   Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall2930   notify the Borrower of the Dollar Equivalent of the amount of the drawing2931   promptly following the determination thereof. Not later than 12:00 p.m. on the2932   Business Day following any payment by the L/C Issuer under a Letter of Credit to2933   be reimbursed in Dollars, or the Applicable Time on the date of any payment by2934   the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative2935   Currency (such date, an “L/C Honor Date”), the Borrower shall reimburse the2936   L/C Issuer in Dollars in an amount equal to the amount of such drawing and in the2937   applicable currency. In the event that (A) a drawing denominated in an2938   Alternative Currency is to be reimbursed in Dollars pursuant to the second2939   sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the2940   Borrower, whether on or after the Honor Date, shall not be adequate on the date2941   of that payment to purchase in accordance with normal banking procedures a sum2942   denominated in the Alternative Currency equal to the drawing, the Borrower2943   agrees, as a separate and independent obligation, to indemnify the L/C Issuer for2944   the loss resulting from its inability on that date to purchase the Alternative2945   Currency in the full amount of the drawing. The L/C Issuer shall notify the2946   Administrative Agent of any failure of the Borrower to reimburse a drawn Letter2947   of Credit. If the Borrower fails to so reimburse the L/C Issuer by such time, the2948   Administrative Agent shall promptly notify each Revolving Credit Lender of the2949   L/C Honor Date, the amount of the unreimbursed drawing (expressed in Dollars2950   in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit2951   denominated in an Alternative Currency) (the “L/C Unreimbursed Amount”),2952   and the amount of such Revolving Credit Lender’s Aggregate Commitment2953   Percentage thereof. In such event, the Borrower shall be deemed to have2954   requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on2955   the L/C Honor Date in an amount equal to the L/C Unreimbursed Amount,2956   without regard to the minimum and multiples specified in Section 2.02(b) for the2957   principal amount of Base Rate Loans, the amount of the unutilized portion of the2958   Aggregate Revolving Credit Committed Amount or the conditions set forth in2959    





 







71   55802528_20   Section 5.02. Any notice given by the L/C Issuer or the Administrative Agent2960   pursuant to this Section 2.03(c)(i) may be given by telephone if immediately2961   confirmed in writing; provided that the lack of such an immediate confirmation2962   shall not affect the conclusiveness or binding effect of such notice.2963   (ii) Each Revolving Credit Lender shall upon any notice pursuant to2964   Section 2.03(c)(i) make funds available to the Administrative Agent (and the2965   Administrative Agent shall apply Cash Collateral provided for this purpose) for2966   the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for2967   Dollar-denominated payments in an amount equal to its Aggregate Commitment2968   Percentage of the L/C Unreimbursed Amount not later than 1:00 p.m. on the2969   Business Day specified in such notice by the Administrative Agent, whereupon,2970   subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender2971   that so makes funds available shall be deemed to have made a Revolving Credit2972   Loan that is a Base Rate Loan to the Borrower in such amount. The2973   Administrative Agent shall remit the funds so received to the L/C Issuer in2974   Dollars.2975   (iii) With respect to any L/C Unreimbursed Amount that is not fully2976   refinanced by a Revolving Credit Borrowing of Base Rate Loans for any reason,2977   the Borrower shall be deemed to have incurred from the L/C Issuer an L/C2978   Borrowing in the amount of the L/C Unreimbursed Amount that is not so2979   refinanced, which L/C Borrowing shall be due and payable on demand (together2980   with interest) and shall bear interest at the Default Rate. In such event, each2981   Revolving Credit Lender’s payment to the Administrative Agent for the account2982   of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in2983   respect of its participation in such L/C Borrowing and shall constitute an L/C2984   Advance from such Revolving Credit Lender in satisfaction of its participation2985   obligation under this Section 2.03(c)(ii).2986   (iv) Until each Revolving Credit Lender funds its Revolving Credit2987   Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer2988   for any amount drawn under any Letter of Credit, interest in respect of such2989   Revolving Credit Lender’s Aggregate Commitment Percentage of such amount2990   shall be solely for the account of the L/C Issuer.2991   (v) Each Revolving Credit Lender’s obligation to make Revolving2992   Credit Loans or L/C Advances, to reimburse the L/C Issuer for amounts drawn2993   under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute2994   and unconditional and shall not be affected by any circumstance, including (A)2995   any setoff, counterclaim, recoupment, defense or other right that such Revolving2996   Credit Lender may have against the L/C Issuer, the Borrower or any other Person2997   for any reason whatsoever, (B) the occurrence or continuance of a Default or2998   Event of Default, (C) non-compliance with the conditions set forth in Section2999   5.02, or (D) any other occurrence, event or condition, whether or not similar to3000   any of the foregoing; provided that the L/C Issuer shall have complied with the3001   applicable provisions of Section 2.03(b)(ii). No such making of an L/C Advance3002    





 







72   55802528_20   shall relieve or otherwise impair the obligation of the Borrower to reimburse the3003   L/C Issuer for the amount of any payment made by the L/C Issuer under any3004   Letter of Credit, together with interest as provided herein.3005   (vi) If any Revolving Credit Lender fails to make available to the3006   Administrative Agent for the account of the L/C Issuer any amount required to be3007   paid by such Revolving Credit Lender pursuant to the foregoing provisions of this3008   Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be3009   entitled to recover from such Revolving Credit Lender (acting through the3010   Administrative Agent), on demand, such amount with interest thereon for the3011   period from the date such payment is required to the date on which such payment3012   is immediately available to the L/C Issuer at a rate per annum equal to the3013   applicable Overnight Rate from time to time in effect. A certificate of the L/C3014   Issuer submitted to any Revolving Credit Lender (through the Administrative3015   Agent) with respect to any amounts owing under this clause (vi) shall be3016   conclusive absent manifest error.3017   (d) Repayment of Participations.3018   (i) At any time after the L/C Issuer has made a payment under any3019   Letter of Credit and has received from any Revolving Credit Lender such3020   Revolving Credit Lender’s L/C Advance in respect of such payment in3021   accordance with Section 2.03(c), if the Administrative Agent receives for the3022   account of the L/C Issuer any payment in respect of the related L/C Unreimbursed3023   Amount or interest thereon (whether directly from the Borrower or otherwise,3024   including proceeds of Cash Collateral applied thereto by the Administrative3025   Agent), the Administrative Agent will distribute to such Revolving Credit Lender3026   its Aggregate Commitment Percentage thereof (appropriately adjusted, in the case3027   of interest payments, to reflect the period of time during which such Revolving3028   Credit Lender’s L/C Advance was outstanding) in Dollars or in the same currency3029   as those received by the Administrative Agent.3030   (ii) If any payment received by the Administrative Agent for the3031   account of the L/C Issuer pursuant to Section 2.03(c)(ii) is required to be returned3032   under any of the circumstances described in Section 11.05 (including pursuant to3033   any settlement entered into by the L/C Issuer in its discretion), each Revolving3034   Credit Lender shall pay to the Administrative Agent for the account of the L/C3035   Issuer its pro rata share thereof on demand of the Administrative Agent, plus3036   interest thereon from the date of such demand to the date such amount is returned3037   by such Revolving Credit Lender, at a rate per annum equal to the applicable3038   Overnight Rate from time to time in effect. The obligations of the Lenders under3039   this clause shall survive the payment in full of the Obligations and the termination3040   of this Credit Agreement.3041   (e) Obligations Absolute. The obligation of the Borrower to reimburse the3042   L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall3043    





 







73   55802528_20   be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms3044   of this Credit Agreement under all circumstances, including the following:3045   (i) any lack of validity or enforceability of such Letter of Credit, this3046   Credit Agreement or any other Credit Document;3047   (ii) the existence of any claim, counterclaim, setoff, defense or other3048   right that the Borrower or any of its Subsidiaries may have at any time against any3049   beneficiary or any transferee of such Letter of Credit (or any Person for whom3050   any such beneficiary or any such transferee may be acting), the L/C Issuer or any3051   other Person, whether in connection with this Credit Agreement, the transactions3052   contemplated hereby or by such Letter of Credit or any agreement or instrument3053   relating thereto, or any unrelated transaction;3054   (iii) any draft, demand, certificate or other document presented under3055   such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in3056   any respect or any statement therein being untrue or inaccurate in any respect; or3057   any loss or delay in the transmission or otherwise of any document required in3058   order to make a drawing under such Letter of Credit;3059   (iv) any payment by the L/C Issuer under such Letter of Credit against3060   presentation of a draft or certificate that does not strictly comply with the terms of3061   such Letter of Credit; or any payment made by the L/C Issuer under such Letter of3062   Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-3063   possession, assignee for the benefit of creditors, liquidator, receiver or other3064   representative of or successor to any beneficiary or any transferee of such Letter3065   of Credit, including any arising in connection with any proceeding under any3066   Debtor Relief Law;3067   (v) any other circumstance or happening whatsoever, whether or not3068   similar to any of the foregoing, including any other circumstance that might3069   otherwise constitute a defense available to, or a discharge of, the Borrower or any3070   Guarantor; or3071   (vi) any adverse change in the relevant exchange rates or in the3072   availability of the relevant Alternative Currency to the Borrower or any3073   Subsidiary or in the relevant currency markets generally.3074   The Borrower shall promptly examine a copy of each Letter of Credit and each3075   amendment thereto that is delivered to the Borrower and, in the event of any claim of non-3076   compliance with the Borrower’s instructions or other irregularity, the Borrower will immediately3077   notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such3078   claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.3079   (f) Role of the L/C Issuer in such Capacity. Each Lender and the Borrower3080   agrees that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any3081   responsibility to obtain any document (other than any sight draft, certificates and documents3082   expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy3083    





 







74   55802528_20   of any such document or the authority of the Person executing or delivering any such document.3084   None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any3085   correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any3086   action taken or omitted in connection herewith at the request or with the approval of the3087   Revolving Credit Lenders or the Required Revolving Credit Lenders, as applicable; (ii) any3088   action taken or omitted in the absence of gross negligence, bad faith or willful misconduct; or3089   (iii) the due execution, effectiveness, validity or enforceability of any document or instrument3090   related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the3091   acts or omissions of any beneficiary or transferee with respect to the Borrower’s use of any3092   Letter of Credit; provided, however, that this assumption is not intended to, and shall not,3093   preclude the Borrower’s pursuing such rights and remedies as the Borrower may have against the3094   beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the3095   Administrative Agent, any of their respective Related Parties nor any correspondent, participant3096   or assignee of the L/C Issuer, shall be liable or responsible for any of the matters described in3097   clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the3098   contrary notwithstanding, the L/C Issuer shall be liable to the Borrower, to the extent, but only to3099   the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the3100   Borrower that the Borrower proves were caused by the L/C Issuer’s willful misconduct, bad faith3101   or gross negligence as determined by a court of competent jurisdiction by a final and non-3102   appealable judgment or the L/C Issuer’s willful failure to pay under any Letter of Credit after the3103   presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the3104   terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing,3105   the L/C Issuer may accept documents that appear on their face to be in order, without3106   responsibility for further investigation, regardless of any notice or information to the contrary,3107   and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument3108   transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or3109   benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or3110   ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any3111   communication to or from the beneficiary via the Society for Worldwide Interbank Financial3112   Telecommunication (“SWIFT”) message or overnight courier, or any other commercially3113   reasonable means of communicating with a beneficiary.3114   (g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the3115   L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement3116   applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby3117   Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,3118   as most recently published by the International Chamber of Commerce at the time of issuance,3119   shall apply to each commercial Letter of Credit.3120   (h) Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that3121   a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the3122   account of, any other Restricted Subsidiary, the Borrower shall be obligated to reimburse the L/C3123   Issuer for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges3124   that the issuance of Letters of Credit for the account of any other Restricted Subsidiary inures to3125   the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from3126   the businesses of such other Restricted Subsidiaries.3127    





 







75   55802528_20   (i) Letter of Credit Fees. The Borrower shall pay Letter of Credit fees as set3128   forth in Section 2.09(b).3129   (j) Conflict with Issuer Documents. In the event of any conflict between the3130   terms hereof and the terms of any Issuer Document, the terms hereof shall control.3131   Section 2.04. Additional Provisions with Respect to Swingline Loans.3132   (a) Borrowing Procedures.3133   (i) Swingline Loans. Each Swingline Borrowing shall be made upon3134   the Borrower’s irrevocable notice to the Swingline Lender and the Administrative3135   Agent (A) telephone, or (B) a Loan Notice; provided that any telephonic notice by3136   the Borrower must be confirmed promptly by delivery to the Administrative3137   Agent of a Loan Notice. Each such notice must be received by the Swingline3138   Lender and the Administrative Agent not later than 2:00 p.m. on the requested3139   borrowing date, and shall specify (a) the amount to be borrowed, which shall be a3140   minimum of $100,000, and (b) the requested borrowing date, which shall be a3141   Business Day. Each such telephonic notice must be confirmed promptly by3142   delivery to the Swingline Lender and the Administrative Agent of a written Loan3143   Notice, appropriately completed and signed by a Responsible Officer of the3144   Borrower. Promptly after receipt by the Swingline Lender of any telephonic Loan3145   Notice, the Swingline Lender will confirm with the Administrative Agent (by3146   telephone or in writing) that the Administrative Agent has also received such3147   Loan Notice and, if not, the Swingline Lender will notify the Administrative3148   Agent (by telephone or in writing) of the contents thereof. Unless the Swingline3149   Lender has received notice (by telephone or in writing) from the Administrative3150   Agent (including at the request of any Lender) prior to 3:00 p.m. on the date of3151   the proposed Swingline Borrowing (i) directing the Swingline Lender not to make3152   such Swingline Loan as a result of the limitations set forth in this Article 2, or (ii)3153   that one or more of the applicable conditions specified in Article 5 is not then3154   satisfied, then, subject to the terms and conditions hereof, the Swingline Lender3155   will, not later than 3:00 p.m. on the borrowing date specified in such Loan Notice,3156   make the amount of its Swingline Loan available to the Borrower at its office by3157   crediting the account of the Borrower on the books of the Swingline Lender in3158   immediately available funds. Notwithstanding anything to the contrary contained3159   in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall3160   not be obligated to make any Swingline Loan at a time when a Revolving Credit3161   Lender is a Defaulting Lender unless the Swingline Lender has entered into3162   arrangements reasonably satisfactory to it and the Borrower to eliminate the3163   Swingline Lender’s Fronting Exposure (after giving effect to Section 2.17(a)(vii))3164   with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in3165   such Swingline Loans, including by providing Cash Collateral or other Adequate3166   Assurance to support such Defaulting Lender’s or Defaulting Lenders’ Aggregate3167   Commitment Percentage of the outstanding Swingline Loans or other applicable3168   share provided for under this Agreement. The Borrower shall repay to the3169   Swingline Lender each Defaulting Lender’s portion (after giving effect to Section3170    





 







76   55802528_20   2.17(a)(vii)) of each Swingline Loan promptly following demand by the3171   Swingline Lender.3172   (b) Refinancing.3173   (i) The Swingline Lender at any time in its sole and absolute3174   discretion may request, on behalf of the Borrower (which hereby irrevocably3175   authorizes the Swingline Lender to so request on its behalf), that each Revolving3176   Credit Lender make a Revolving Credit Loan that is a Base Rate Loan in an3177   amount equal to such Revolving Credit Lender’s Aggregate Commitment3178   Percentage of Swingline Loans then outstanding. Such request shall be made in3179   writing (which written request shall be deemed to be a Loan Notice for purposes3180   hereof) and in accordance with the requirements of Section 2.02(a), without3181   regard to the minimum and multiples specified in Section 2.02(b) for the principal3182   amount of Revolving Credit Loans, the unutilized portion of the Aggregate3183   Revolving Credit Commitments or the conditions set forth in Section 5.02. The3184   Swingline Lender shall furnish the Borrower with a copy of the applicable Loan3185   Notice promptly after delivering such notice to the Administrative Agent. Each3186   Revolving Credit Lender shall make an amount equal to its pro rata share of the3187   amount specified in such Loan Notice available to the Administrative Agent in3188   immediately available funds (and the Administrative Agent may apply Cash3189   Collateral available with respect to the applicable Swingline Loan) for the account3190   of the Swingline Lender at the Administrative Agent’s Office not later than 1:003191   p.m. on the day specified in such Loan Notice, whereupon, subject to Section3192   2.04(b)(ii), each Revolving Credit Lender that so makes funds available shall be3193   deemed to have made a Revolving Credit Loan that is a Base Rate Loan to the3194   Borrower in such amount. In such case, the Administrative Agent shall remit the3195   funds so received to the Swingline Lender.3196   (ii) If for any reason any Swingline Loan cannot be refinanced by such3197   a Borrowing of Revolving Credit Loans in accordance with Section 2.04(b)(i), the3198   request for Revolving Credit Loans submitted by the Swingline Lender as set3199   forth herein shall be deemed to be a request by the Swingline Lender that each of3200   the Revolving Credit Lenders fund its risk participation in the relevant Swingline3201   Loan and each Revolving Credit Lender’s payment to the Administrative Agent3202   for the account of the Swingline Lender pursuant to Section 2.04(b)(i) shall be3203   deemed payment in respect of such participation.3204   (iii) If any Revolving Credit Lender fails to make available to the3205   Administrative Agent for the account of the Swingline Lender any amount3206   required to be paid by such Revolving Credit Lender pursuant to the foregoing3207   provisions of this Section 2.04(b) by the applicable time specified in Section3208   2.04(b)(i) the Swingline Lender shall be entitled to recover from such Revolving3209   Credit Lender (acting through the Administrative Agent), on demand, such3210   amount with interest thereon for the period from the date such payment is3211   required to the date on which such payment is immediately available to the3212   Swingline Lender at a rate per annum equal to the applicable Overnight Rate from3213    





 







77   55802528_20   time to time in effect. A certificate of the Swingline Lender submitted to any3214   Revolving Credit Lender (through the Administrative Agent) with respect to any3215   amounts owing under this clause (iii) shall be conclusive absent manifest error.3216   (iv) Each Revolving Credit Lender’s obligation to make Revolving3217   Credit Loans or to purchase and fund risk participations in Swingline Loans3218   pursuant to this Section 2.04(b) shall be absolute and unconditional and shall not3219   be affected by any circumstance, including (A) any setoff, counterclaim,3220   recoupment, defense or other right that such Lender may have against the3221   Swingline Lender, the Borrower or any other Person for any reason whatsoever,3222   (B) the occurrence or continuance of a Default or Event of Default, (C) non-3223   compliance with the conditions set forth in Section 5.02, or (D) any other3224   occurrence, event or condition, whether or not similar to any of the foregoing;3225   provided that the Swingline Lender has complied with the provisions of Section3226   2.04(a). No such purchase or funding of risk participations shall relieve or3227   otherwise impair the obligation of the Borrower to repay Swingline Loans,3228   together with interest as provided herein.3229   (c) Repayment of Participations.3230   (i) At any time after any Revolving Credit Lender has purchased and3231   funded a risk participation in a Swingline Loan, if the Swingline Lender receives3232   any payment on account of such Swingline Loan, the Swingline Lender will3233   distribute to such Revolving Credit Lender its Aggregate Commitment Percentage3234   of such payment (appropriately adjusted, in the case of interest payments, to3235   reflect the period of time during which such Revolving Credit Lender’s risk3236   participation was funded) in the same funds as those received by the Swingline3237   Lender.3238   (ii) If any payment received by the Swingline Lender in respect of3239   principal or interest on any Swingline Loan is required to be returned by the3240   Swingline Lender under any of the circumstances described in Section 11.053241   (including pursuant to any settlement entered into by the Swingline Lender in its3242   discretion), each Revolving Credit Lender shall pay to the Swingline Lender its3243   Aggregate Commitment Percentage thereof on demand of the Administrative3244   Agent, plus interest thereon from the date of such demand to the date such amount3245   is returned, at a rate per annum equal to the applicable Overnight Rate. The3246   Administrative Agent will make such demand upon the request of the Swingline3247   Lender. The obligations of the Revolving Credit Lenders under this clause shall3248   survive the payment in full of the Obligations and the termination of this Credit3249   Agreement.3250   (d) Interest for Account of the Swingline Lender. The Swingline Lender shall3251   be responsible for invoicing the Borrower for interest on the Swingline Loans. Until each3252   Revolving Credit Lender funds its Revolving Credit Loan or risk participation pursuant to this3253   Section 2.04 to refinance such Revolving Credit Lender’s Aggregate Commitment Percentage of3254    





 







78   55802528_20   any Swingline Loan, interest in respect thereof shall be solely for the account of the Swingline3255   Lender.3256   (e) Payments Directly to Swingline Lender. The Borrower shall make all3257   payments of principal and interest in respect of the Swingline Loans, directly to the Swingline3258   Lender.3259   Section 2.05. Repayment of Loans Term Loans.3260   (a) The Borrower shall repay to the Term Lenders the aggregate principal3261   amount of all Term Loans outstanding on the following dates in the respective amounts set forth3262   opposite such dates (which amounts shall be reduced on a dollar-for-dollar basis as a result of the3263   application of prepayments of Term Loans in accordance with Section 2.06):3264   Date Amount   September 30, 2016 $2,500,000   December 31, 2016 $2,500,000   March 31, 2017 $2,500,000   June 30, 2017 $2,500,000   September 30, 2017 $2,500,000   December 31, 2017 $2,500,000   March 31, 2018 $2,500,000   June 30, 2018 $2,500,000   September 30, 2018 $3,750,000   December 31, 2018 $3,750,000   March 31, 2019 $3,750,000   June 30, 2019 $3,750,000   September 30, 2019 $5,000,000   December 31, 2019 $5,000,000   March 31, 2020 $5,000,000   June 30, 2020 $5,000,000   September 30, 2020 $6,250,000   December 31, 2020 $6,250,000   March 31, 2021 $6,250,000   Term Loan Maturity Date $126,250,000   (or, if different, the entire   aggregate principal amount of   Term Loans then outstanding)   3265   provided that the final principal repayment installment of the Initial Term Loans shall be repaid3266   on the Maturity Date in respect of the Term Loan Facility and in any event shall be in an amount3267   equal to the aggregate principal amount of all Initial Term Loans outstanding on such date.3268   (b) Revolving Credit Loans. The Outstanding Amount of Revolving Credit3269   Loans shall be repaid in full on the Revolving Termination Date.3270    





 







79   55802528_20   (c) Swingline Loans. The Outstanding Amount of the Swingline Loans shall3271   be repaid in full on the earlier to occur of (i) the date five (5) Business Days after such Loan is3272   made and (ii) the Revolving Termination Date.3273   Section 2.06. Prepayments.3274   (a) Voluntary Prepayments. The Loans may be repaid in whole or in part3275   without premium or penalty (except, (x) in the case of Loans other than Base Rate Loans,3276   amounts payable pursuant to Section 3.05) and (y) as set forth in Section 2.06(d)); provided that:3277   (i) in the case of Loans other than Swingline Loans, notice thereof3278   must be received by 12:00 p.m. by the Administrative Agent (A) at least three3279   Business Days prior to the date of prepayment, in the case of Eurocurrency Rate3280   Loans and (B) on the date of prepayment, in the case of Base Rate Loans, and in3281   each case, any such prepayment shall be a minimum principal amount of3282   $1,000,000 and integral multiples of $1,000,000 in excess thereof, in the case of3283   Eurocurrency Rate Loans and $500,000 and integral multiples of $100,000 in3284   excess thereof, in the case of Base Rate Loans, or, in each case, the entire3285   remaining principal amount thereof, if less;3286   (ii) in the case of Swingline Loans, (A) notice thereof must be received3287   by the Swingline Lender by 1:00 p.m. on the date of prepayment (with a copy to3288   the Administrative Agent), and (B) any such prepayment shall be in the same3289   minimum principal amounts as for advances thereof (or any lesser amount that3290   may be acceptable to the Swingline Lender).3291   Each such notice of voluntary prepayment hereunder shall be irrevocable (provided that3292   the notice may be conditional upon any refinancing or other conditional event and may be3293   rescinded by the Borrower if such refinancing or other conditional event shall not be3294   consummated or is otherwise delayed) and shall specify the date and amount of prepayment and3295   the Class and Type(s) of Loans that are being prepaid and, if Eurocurrency Rate Loans are to be3296   prepaid, the Interest Period(s) of such Loans. The Administrative Agent will give prompt notice3297   to the Appropriate Lenders of any prepayment on the Loans and the Appropriate Lender’s3298   interest therein. If such notice is given by the Borrower, the Borrower shall make such3299   prepayment and the payment amount specified in such notice shall be due and payable on the3300   date specified therein. Prepayments of Eurocurrency Rate Loans hereunder shall be3301   accompanied by accrued interest on the amount prepaid and breakage or other amounts due, if3302   any, under Section 3.05.3303   (b) Mandatory Prepayments.3304   (i) Revolving Credit Commitments. If at any time (A) the3305   Outstanding Amount of Revolving Credit Obligations shall exceed the Aggregate3306   Revolving Credit Committed Amount, (B) the Outstanding Amount of L/C3307   Obligations shall exceed the L/C Sublimit or (C) the Outstanding Amount of3308   Swingline Loans shall exceed the Swingline Sublimit, the Borrower will3309   immediately prepay the Revolving Credit Obligations in an amount equal to such3310    





 







80   55802528_20   excess; provided, however, that L/C Obligations will not be required to be Cash3311   Collateralized hereunder until the Revolving Credit Loans and Swingline Loans3312   have been paid in full.3313   (ii) (A) Dispositions and Involuntary Dispositions. Subject to Section3314   2.06(b)(ii)(D), the Borrower will prepay the Term Loans on the fifth Business3315   Day following receipt of Net Cash Proceeds in an amount equal to 100% of the3316   Net Cash Proceeds received from any Disposition pursuant Section 8.05(b) or any3317   Involuntary Disposition by the Borrower or any Restricted Subsidiary; provided3318   that if (x) the Borrower delivers, no later than the last day of such five Business3319   Day period following receipt, a certificate of a Responsible Officer to the3320   Administrative Agent setting forth the Borrower’s intent to reinvest such proceeds3321   in assets useful in the business of the Borrower or any Restricted Subsidiary and3322   (y) no Default or Event of Default shall have occurred and be continuing at the3323   time of such certificate or at the proposed time of the application of such3324   proceeds, and such proceeds shall not be required to be applied to prepay the3325   Term Loans except to the extent such proceeds are not so reinvested within (A)3326   twelve (12) months following receipt of such Net Cash Proceeds or (B) if the3327   Borrower or any Restricted Subsidiary enters into a legally binding commitment3328   to reinvest such Net Cash Proceeds within twelve (12) months following receipt3329   thereof, the later of (I) twelve (12) months following receipt thereof and (II) one3330   hundred eighty (180) days after the end of such 12-month period.3331   (B) Incurrence of Indebtedness. The Borrower will prepay the3332   Term Loans on or prior to the fifth Business Day following receipt of Net3333   Cash Proceeds in an amount equal to 100% of the Net Cash Proceeds3334   received from any incurrence or issuance of Indebtedness by the Borrower3335   or any Restricted Subsidiary, other than Indebtedness permitted to be3336   incurred or issued pursuant to Section 8.03.3337   (C) Refinancing Loans and Refinancing Equivalent Debt. If3338   the Borrower incurs or issues any Refinancing Term Loans (or3339   Refinancing Equivalent Debt) resulting in Net Cash Proceeds (as opposed3340   to such Refinancing Term Loans or Refinancing Equivalent Debt arising3341   out of an exchange of existing Term Loans for such Refinancing Term3342   Loans or Refinancing Equivalent Debt), the Borrower shall cause to be3343   prepaid an aggregate principal amount of Term Loans in an amount equal3344   to 100% of all Net Cash Proceeds received therefrom on or prior to the3345   fifth Business Day following receipt of such Net Cash Proceeds.3346   (D) Foreign Dispositions and Foreign Involuntary3347   Dispositions. Notwithstanding anything to the contrary contained in this3348   Section 2.06(b), mandatory prepayments arising from the receipt of Net3349   Cash Proceeds from any Disposition or Involuntary Disposition by any3350   Foreign Subsidiary pursuant to Section 2.06(b)(ii)(A) (each, a “Foreign3351   Disposition”) shall not be required (1) to the extent the making of any3352   such mandatory prepayment from the Net Cash Proceeds of such Foreign3353    





 







81   55802528_20   Disposition (or the repatriation of funds to effect such payment) would3354   give rise to a material adverse tax consequence (as reasonably determined3355   in good faith by the Borrower), (2) without duplication (including with3356   respect to any reduction set forth in the definitions of Net Cash Proceeds),3357   to the extent such amounts have been applied to prepay any Indebtedness3358   of any Foreign Subsidiary or to the extent such Foreign Subsidiary has3359   reinvested such amounts in assets useful in its business or the business of3360   the Borrower or its Restricted Subsidiaries, provided that no such3361   reinvestments shall be permitted at the time an Event of Default shall then3362   be continuing or (3) so long as the applicable local Law will not permit3363   repatriation thereof to the United States (the Borrower hereby agreeing to3364   use commercially reasonable efforts to cause the applicable Foreign3365   Subsidiary to promptly file any required forms, obtain any necessary3366   consents and take all similar actions reasonably required by the applicable3367   local Law to permit such repatriation); provided that if such repatriation of3368   any such affected Net Cash Proceeds is later permitted under applicable3369   Law, unless such amounts have previously been applied to prepayments or3370   reinvestments to the extent permitted by clause (2) above, such3371   repatriation will, subject to clause (1) above, be effected as promptly as3372   practicable and such repatriated Net Cash Proceeds will be promptly after3373   such repatriation applied pursuant to Section 2.06(b)(ii)(A), deeming such3374   Net Cash Proceeds as having been received for purposes of such Section3375   on the date of such repatriation. All mandatory prepayments required to3376   be made from the Net Cash Proceeds of any Foreign Dispositions shall not3377   be required until a date which is 65 Business Days following the receipt of3378   such Net Cash Proceeds.3379   (E) The Borrower shall deliver to the Administrative Agent, in3380   connection with each prepayment required under this Section 2.06(b)(ii),3381   (i) a certificate signed by a Responsible Officer of the Borrower setting3382   forth in reasonable detail the calculation of the amount of such3383   prepayment and (ii) at least three (3) Business Days’ prior written notice3384   of such prepayment. Each notice of prepayment shall specify the3385   prepayment date and the principal amount of each Loan (or portion3386   thereof) to be prepaid.3387   (F) Each Term Lender may reject all (but not less than all) of3388   its applicable share of any mandatory prepayment required to be made by3389   the Borrower pursuant to clauses (A), (B) and (D) (such declined amounts,3390   the “Mandatory Prepayment Declined Proceeds”) of Term Loans3391   required to be made pursuant to this Section 2.06(b)(ii) by providing3392   written notice (each, a “Mandatory Prepayment Rejection Notice”) to3393   the Administrative Agent and the Borrower not later than 5:00 p.m., New3394   York City time, one Business Day after the date of such Term Lender’s3395   receipt of notice from the Administrative Agent regarding such3396   prepayment. If a Term Lender fails to deliver a Mandatory Prepayment3397   Rejection Notice to the Administrative Agent within the time frame3398    





 







82   55802528_20   specified above such failure will be deemed an acceptance of the total3399   amount of such mandatory prepayment of Term Loans. Any Mandatory3400   Prepayment Declined Proceeds shall be shall be offered to the Term3401   Lenders not so declining such prepayment on a pro rata basis in3402   accordance with the amounts of the Term Loans of such Lender (with such3403   non-declining Term Lenders having the right to decline any prepayment3404   with Mandatory Prepayment Declined Proceeds at the time and in the3405   manner specified by the Administrative Agent). To the extent such non-3406   declining Term Lenders elect to decline their pro rata share of such3407   Mandatory Prepayment Declined Proceeds, any Mandatory Prepayment3408   Declined Proceeds remaining thereafter shall be retained by the Borrower.3409   (c) Application. Within each Class, prepayments will be applied first to Base3410   Rate Loans, then to Eurocurrency Rate Loans in direct order of Interest Period maturities. In3411   addition:3412   (i) Voluntary Prepayments. Voluntary prepayments shall be applied3413   as specified by the Borrower. In the absence of a designation by the Borrower,3414   any voluntary prepayment of the Term Loans shall be applied within each Class3415   of Term Loans to reduce the principal repayment installments of such Class of3416   Term Loans in direct order of maturity. Voluntary prepayments on the Loan3417   Obligations will be paid by the Administrative Agent to the Lenders ratably in3418   accordance with their respective Aggregate Commitment Percentage.3419   (ii) Mandatory Prepayments.3420   (A) Mandatory prepayments in respect of the Revolving Credit3421   Facility under Section 2.06(b)(i) above shall be applied first, to the3422   Swingline Loans until paid in full, second, to the Revolving Credit Loans3423   until paid in full, and, third, to Cash Collateralize outstanding Letters of3424   Credit.3425   (B) Mandatory prepayments in respect of Term Loans under3426   Section 2.06(b)(ii) above shall be applied to scheduled installments of3427   principal as specified by the Borrower. In the absence of a designation by3428   the Borrower, any mandatory prepayment of the Term Loans shall be3429   applied to reduce the principal repayment installments of such Term Loan3430   Facility in direct order of maturity.3431   All prepayments under Section 2.06(b). shall be subject to Section 3.05, but otherwise3432   without premium or penalty, and shall be accompanied by interest on the principal amount3433   prepaid through the date of prepayment.3434   Section 2.07. Termination or Reduction of Commitments.3435   (a) Voluntary Reductions of Revolving Credit Commitments. The Aggregate3436   Revolving Credit Commitments hereunder may be permanently reduced in whole or in part by3437   notice from the Borrower to the Administrative Agent; provided that (i) any such notice thereof3438    





 







83   55802528_20   must be received by 12:00 p.m. at least three Business Days prior to the date of reduction or3439   termination and any such prepayment shall be in a minimum principal amount of $5,000,000 and3440   integral multiples of $1,000,000 in excess thereof; (ii) none of the Aggregate Revolving Credit3441   Commitments may be reduced to an amount less than the Revolving Credit Obligations then3442   outstanding thereunder and (iii) if, after giving effect to any reduction of any of the Aggregate3443   Revolving Credit Commitments, the L/C Sublimit or the Swingline Sublimit exceeds the amount3444   of applicable Aggregate Revolving Credit Commitments, such sublimit shall be automatically3445   reduced by the amount of such excess. The Administrative Agent will give prompt notice to the3446   Revolving Credit Lenders of any such reduction in the Aggregate Revolving Credit3447   Commitments. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice3448   of termination of any Revolving Credit Commitments if such termination would have resulted3449   from a refinancing of all of the applicable Class of Revolving Credit Commitments or other3450   conditional event, which refinancing or other conditional event shall not be consummated or3451   shall otherwise be delayed.3452   (b) Mandatory Reductions of Revolving Credit Commitments. The Aggregate3453   Revolving Credit Committed Amount shall not be permanently reduced upon application of any3454   mandatory prepayments to the Revolving Credit Obligations.3455   (c) Mandatory Reductions of Term Commitments. The aggregate Term3456   Commitments with respect to the Initial Term Loans shall be automatically and permanently3457   reduced to zero on the Closing Date, upon and after giving effect to the funding of the Initial3458   Term Loans on such date.3459   (d) Payment of Fees. All Commitment Fees or other fees accrued with3460   respect to such portion of the Aggregate Revolving Credit Commitments terminated or reduced3461   pursuant to Section 2.07 through the effective date of such termination or reduction shall be paid3462   on the effective date of such termination or reduction.3463   Section 2.08. Interest.3464   (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency3465   Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period3466   at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable3467   Percentage; (ii) each Loan that is a Base Rate Loan shall bear interest on the outstanding3468   principal amount thereof from the applicable borrowing date at a rate per annum equal to the3469   Base Rate plus the Applicable Percentage and (iii) each Swingline Loan shall bear interest on the3470   outstanding principal amount thereof from the applicable borrowing date at a rate per annum3471   equal to the Base Rate plus the Applicable Percentage.3472   (b) (i) If any amount of principal of any Loan is not paid when due (after3473   giving effect to any applicable grace periods), whether at stated maturity, by acceleration or3474   otherwise, such overdue amount shall thereafter bear interest at a fluctuating interest rate per3475   annum at all times equal to the Default Rate to the fullest extent permitted by applicable Law.3476   (ii) If any amount (other than principal of any Loan) payable under3477   any Credit Document is not paid when due (after giving effect to any applicable3478    





 







84   55802528_20   grace periods), whether at stated maturity, by acceleration or otherwise, such3479   overdue amount shall thereafter bear interest at a fluctuating interest rate per3480   annum at all times equal to the Default Rate to the fullest extent permitted by3481   applicable Law.3482   (iii) Upon the occurrence and during the continuation of an Event of3483   Default under Section 9.01(f), the principal amount of all outstanding Obligations3484   hereunder shall bear interest at a fluctuating interest rate per annum at all times3485   equal to the Default Rate to the fullest extent permitted by applicable Law.3486   (iv) Accrued and unpaid interest on past due amounts (including3487   interest on past due amounts) shall be due and payable upon demand.3488   (c) Interest on each Loan shall be due and payable in arrears on each Interest3489   Payment Date applicable thereto and at such other times as may be specified herein. Interest3490   hereunder shall be due and payable in accordance with the terms hereof before and after3491   judgment, and before and after the commencement of any proceeding under any Debtor Relief3492   Law.3493   Section 2.09. Fees3494   (a) Commitment Fees.3495   (i) Revolving Credit Commitment. The Borrower shall pay to the3496   Administrative Agent for the account of each Revolving Credit Lender (other than3497   a Defaulting Lender which shall be dealt with as provided in Section 2.17) in3498   accordance with its Aggregate Commitment Percentage, a commitment fee in3499   Dollars (the “Commitment Fee”), at a rate per annum equal to the product of (A)3500   the Applicable Percentage times (B) the actual daily amount by which the3501   Aggregate Revolving Credit Commitments exceed the sum of (x) the Outstanding3502   Amount of Revolving Credit Loans and (y) the Outstanding Amount of L/C3503   Obligations, subject to adjustment as provided in Section 2.17.3504   (ii) Payments. The Commitment Fee shall accrue at all times during3505   the Commitment Period, including at any time during which one or more of the3506   conditions in Article 5 is not met, and shall be due and payable quarterly in3507   arrears on the last Business Day of each March, June, September and December,3508   commencing with the first such date to occur after the Closing Date, on the3509   Revolving Termination Date (and, if applicable, thereafter on demand). The3510   Commitment Fee shall be calculated quarterly in arrears, and if there is any3511   change in the Applicable Percentage during any quarter, the actual daily amount3512   shall be computed and multiplied by the Applicable Percentage separately for3513   each period during such quarter that such Applicable Percentage was in effect.3514   For purposes of clarification, Swingline Loans shall not be considered outstanding3515   for purposes of determining the unused portion of the Aggregate Revolving Credit3516   Commitments.3517   (b) Commercial and Standby Letter of Credit Fees.3518    





 







85   55802528_20   (i) Letter of Credit Fees. The Borrower shall pay to the3519   Administrative Agent for the account of each Revolving Credit Lender in3520   accordance with its Aggregate Commitment Percentage a Letter of Credit fee in3521   Dollars for each Letter of Credit equal to the Applicable Percentage multiplied by3522   the Dollar Equivalent of the actual daily maximum amount available to be drawn3523   under such Letter of Credit (whether or not such maximum amount is then in3524   effect under such Letter of Credit if such maximum amount increases periodically3525   pursuant to the terms of such Letter of Credit) (the “Letter of Credit Fees”);3526   provided, however, any Letter of Credit Fees otherwise payable for the account of3527   a Defaulting Lender with respect to any Letter of Credit as to which such3528   Defaulting Lender has not provided Cash Collateral or other Adequate Assurance3529   reasonable satisfactory to the L/C Issuer pursuant to Section 2.03(a)(ii) and3530   Section 2.17 shall be payable into the Defaulting Lender Account or, to the3531   maximum extent permitted by applicable Law, to the other Revolving Credit3532   Lenders in accordance with the upward adjustments in their respective Aggregate3533   Commitment Percentages allocable to such Letter of Credit pursuant to Section3534   2.17(a)(vii), with the balance of such fee, if any, payable to the L/C Issuer for its3535   own account. The Letter of Credit Fees shall be computed on a quarterly basis in3536   arrears, and shall be due and payable on the last Business Day of each March,3537   June, September and December, commencing with the first such date to occur3538   after the issuance of such Letter of Credit, on the L/C Expiration Date, and on the3539   Revolving Termination Date. If there is any change in the Applicable Percentage3540   during any quarter, the Dollar Equivalent of the daily maximum amount of each3541   standby Letter of Credit shall be computed and multiplied by the Applicable3542   Percentage separately for each period during such quarter that such Applicable3543   Percentage was in effect. Notwithstanding anything to the contrary contained3544   herein, upon the request of the Required Revolving Credit Lenders, while any3545   Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.3546   (ii) Fronting Fee and Documentary and Processing Charges Payable3547   to the L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own3548   account a fronting fee in Dollars equal to 0.125% per annum of the Dollar3549   Equivalent of the actual daily maximum amount available to be drawn under such3550   Letter of Credit. In addition, the Borrower shall pay directly to the L/C Issuer for3551   its own account the customary issuance, presentation, amendment and other3552   processing fees, and other standard costs and charges, of the L/C Issuer relating to3553   letters of credit as from time to time in effect. Such customary fees and standard3554   costs and charges are due and payable on demand and are nonrefundable.3555   (c) Other Fees. The Borrower shall pay to the Agents such fees as shall have3556   been separately agreed upon in writing in the amounts and at the times so specified. Such fees3557   shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as3558   expressly agreed between the Borrower and the applicable Agent).3559   (d) Closing Fees. The Borrower agrees to pay on the Closing Date to each3560   Lender party to this Agreement on the Closing Date, as fee compensation for the funding of such3561   Lender’s Term Loan and its Revolving Credit Commitment as in effect on the Closing Date, a3562    





 







86   55802528_20   closing fee (the “Closing Fee”) in an amount as separately agreed by the Administrative Agent3563   and the Borrower. Such Closing Fee will be in all respects fully earned, due and payable on the3564   Closing Date and non-refundable and non-creditable thereafter and, in the case of the portion of3565   the Closing Fee related to the funding of the Term Loans made by such Lender and the portion of3566   the Closing Fee related to Revolving Credit Commitments of such Lender, such portion of the3567   Closing Fee shall be netted against the Term Loans made by such Lender on the Closing Date3568   and the Revolving Credit Commitments of such Lender on the Closing Date.3569   Section 2.10. Computation of Interest and Fees; Retroactive Adjustments to Applicable3570   Percentage.3571   (a) All computations of interest for Base Rate Loans (including Base Rate3572   Loans determined by reference to the Eurocurrency Rate) shall be made on the basis of a year of3573   365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and3574   interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall3575   accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or3576   any portion thereof, for the day on which the Loan or such portion is paid; provided that any3577   Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear3578   interest for one day. Each determination by the Administrative Agent of an interest rate or fee3579   hereunder shall be conclusive and binding for all purposes, absent manifest error.3580   (b) If at any time prior to the termination of the Commitments of all of the3581   Lenders and the repayment of all other Obligations hereunder (other than (i) contingent3582   indemnification obligations as to which no claim has been asserted, (ii) Obligations described in3583   clauses (b) and (c) of the definition thereof and (iii) any Letter of Credit that has been Cash3584   Collateralized or back-stopped by a letter of credit reasonably satisfactory to the L/C Issuer or3585   such Letter of Credit has been deemed reissued under another agreement reasonably acceptable3586   to the L/C Issuer), as a result of any restatement of or other adjustment to the financial statements3587   of the Borrower or for any other reason, the Borrower or the Lenders determine that (1) the3588   Consolidated Total Net Leverage Ratio as calculated by the Borrower in any Compliance3589   Certificate delivered to the Administrative Agent was inaccurate and (2) a proper calculation of3590   the Consolidated Total Net Leverage Ratio would have resulted in a higher Applicable3591   Percentage for such period, then the Borrower shall be obligated to pay as immediately due and3592   payable to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer,3593   as the case may be, within three (3) Business Days after notice by the Administrative Agent to3594   the Borrower (or, after the occurrence of an actual or deemed entry of an order for relief with3595   respect to the Borrower under the Bankruptcy Code of the United States, automatically and3596   without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount3597   equal to the excess of the amount of interest and fees that should have been paid for such period3598   over the amount of interest and fees actually paid for such period. During such three Business3599   Day period and thereafter, if the preceding sentence is complied with, the failure to previously3600   pay such shortfall in interest and fees and the delivery of such inaccurate certificate shall not in3601   and of themselves constitute a Default or Event of Default and no amounts shall be payable at3602   the Default Rate in respect of any such interest or fees. This paragraph shall not limit the rights3603   of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section3604   2.03(c)(iii), 2.03(i) or 2.08(b) or under Article 9.3605    





 







87   55802528_20   Section 2.11. Payments Generally; Administrative Agent’s Clawback.3606   (a) General. All payments to be made by any Credit Party shall be made3607   without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as3608   otherwise expressly provided herein, all payments by any Credit Party hereunder shall be made3609   to the Administrative Agent, for the account of the respective Lenders to which such payment is3610   owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not3611   later than 2:00 p.m. on the date specified herein. If, for any reason, any Borrower is prohibited3612   by any Law from making any required payment hereunder in an Alternative Currency, such3613   Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative3614   Currency payment amount. The Administrative Agent will promptly distribute to each Lender its3615   pro rata share of such payment in like funds as received by wire transfer to such Lender’s3616   Lending Office. All payments received by the Administrative Agent (i) after 2:00 p.m., in the3617   case of payments in Dollars, or (ii) after the Applicable Time related to payments in an3618   Alternative Currency, shall in each case, be deemed received on the next succeeding Business3619   Day and any applicable interest or fee shall continue to accrue. Subject to the definition of3620   “Interest Period,” if any payment to be made by any Credit Party shall come due on a day other3621   than a Business Day, payment shall be made on the next following Business Day, and such3622   extension of time shall be reflected in computing interest or fees, as the case may be.3623   (b) Funding by Lenders; Presumption by Administrative Agent. Unless the3624   Administrative Agent shall have received notice from a Lender prior to the proposed date of any3625   Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans,3626   prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to3627   the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may3628   assume that such Lender has made such share available on such date in accordance with Section3629   2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share3630   available in accordance with and at the time required by Section 2.02) and may, in reliance upon3631   such assumption, make available to the Borrower a corresponding amount. In such event, if a3632   Lender has not in fact made its share of the applicable Borrowing available to the Administrative3633   Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative3634   Agent forthwith on demand such corresponding amount in immediately available funds with3635   interest thereon, for each day from and including the date such amount is made available to the3636   Borrower to but excluding the date of payment to the Administrative Agent, at (x) in the case of3637   a payment to be made by such Lender, the Overnight Rate plus any administrative, processing or3638   similar fees customarily charged by the Administrative Agent in connection with the foregoing3639   and (y) in the case of a payment to be made by the Borrower, the interest rate applicable to Base3640   Rate Loans under the Facility in which such Loan was made. If the Borrower and such Lender3641   shall pay such interest to the Administrative Agent for the same or an overlapping period, the3642   Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by3643   the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the3644   Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in3645   such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the3646   Borrower may have against a Lender that shall have failed to make such payment to the3647   Administrative Agent.3648    





 







88   55802528_20   (c) Payments by the Borrower; Presumptions by Administrative Agent.3649   Unless the Administrative Agent shall have received notice from the Borrower prior to the date3650   on which any payment is due to the Administrative Agent for the account of the Lenders or the3651   L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent3652   may assume that the Borrower has made such payment on such date in accordance herewith and3653   may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case3654   may be, the amount due. In such event, if the Borrower has not in fact made such payment, then3655   each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the3656   Administrative Agent forthwith on demand the amount so distributed to such Lender or L/C3657   Issuer, in immediately available funds with interest thereon, for each day from and including the3658   date such amount is distributed to it to but excluding the date of payment to the Administrative3659   Agent, at the Overnight Rate. A notice of the Administrative Agent to any Lender or the3660   Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent3661   manifest error.3662   (d) Failure to Satisfy Conditions Precedent. If any Lender makes available to3663   the Administrative Agent funds for any Loan to be made by such Lender as provided in the3664   foregoing provisions of this Article 2, and such funds are not made available to the Borrower by3665   the Administrative Agent because the conditions to the applicable Credit Extension set forth in3666   Article 5 are not satisfied or waived in accordance with the terms hereof, the Administrative3667   Agent shall return such funds (in like funds as received from such Lender) to such Lender,3668   without interest.3669   (e) Obligation of the Lenders Several. The obligations of the Lenders3670   hereunder to make Loans, to fund participations in Letters of Credit and Swingline Loans and to3671   make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender3672   to make any Loan, to fund any such participation or to make any payment under Section 11.04(c)3673   on any date required hereunder shall not relieve any other Lender of its corresponding obligation3674   to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so3675   make its Loan, to purchase its participation or to make its payment under Section 11.04(c).3676   (f) Funding Source. Subject to Section 3.06, nothing herein shall be deemed3677   to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to3678   constitute a representation by any Lender that it has obtained or will obtain the funds for any3679   Loan in any particular place or manner.3680   (g) Allocation of Funds. If at any time insufficient funds are received by or3681   are available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,3682   interest and fees then due hereunder, such funds shall be applied (i) first, toward costs and3683   expenses (including all reasonable and documented out-of-pocket fees, expenses and3684   disbursements of any law firm or other counsel and amounts payable under Article 3) incurred3685   by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees3686   then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of3687   interest and fees then due to such parties, and (iii) third, toward repayment of principal and L/C3688   Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the3689   amounts of principal and L/C Borrowings then due to such parties.3690    





 







89   55802528_20   Section 2.12. Sharing of Payments by Lenders. If any Lender shall, by exercising any3691   right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or3692   interest on any of the Loans made by it, or the participations in L/C Obligations or in Swingline3693   Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate3694   amount of such Loans or participations and accrued interest thereon greater than its pro rata3695   share of the applicable Class of Loans thereof as provided herein, then the Lender receiving such3696   greater proportion shall notify the Administrative Agent of such fact, and purchase (for cash at3697   face value) participations in the Loans and subparticipations in L/C Obligations and Swingline3698   Loans of the other Appropriate Lenders, or make such other adjustments among the group of3699   Appropriate Lenders as shall be equitable, so that the benefit of all such payments shall be shared3700   by the Appropriate Lenders ratably in accordance with the aggregate amount of principal of and3701   accrued interest on their respective Loans and other amounts owing them; provided that:3702   (A) if any such participations or subparticipations are3703   purchased and all or any portion of the payment giving rise thereto is3704   recovered, such participations or subparticipations shall be rescinded and3705   the purchase price restored to the extent of such recovery, without interest;3706   and3707   (B) the provisions of this Section shall not be construed to3708   apply to (x) any payment made by the Borrower pursuant to and in3709   accordance with the express terms of this Credit Agreement, including3710   Sections 2.18, 2.19 and 2.20 and the application of funds arising from the3711   existence of a Defaulting Lender, (y) any amounts applied to L/C3712   Obligations by the L/C Issuer or Swingline Loans by the Swingline3713   Lender, as appropriate, from Cash Collateral or other Adequate Assurance3714   provided under Section 2.16 or (z) any payment obtained by a Lender as3715   consideration for the assignment of or sale of a participation in any of its3716   Loans or subparticipations in L/C Obligations or Swingline Loans to any3717   assignee or participant, other than to the Borrower or any of its Restricted3718   Subsidiaries (as to which the provisions of this Section shall apply) unless3719   such assignment occurs in accordance with Section 11.06(i).3720   Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do3721   so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing3722   arrangements may exercise against such Credit Party rights of setoff and counterclaim with3723   respect to such participation as fully as if such Lender were a direct creditor of such Credit Party3724   in the amount of such participation.3725   Section 2.13. Evidence of Debt.3726   (a) The Credit Extensions made by each Lender shall be evidenced by one or3727   more accounts or records maintained by such Lender and by the Administrative Agent in the3728   ordinary course of business. The accounts or records maintained by the Administrative Agent3729   and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions3730   made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so3731   record or any error in doing so shall not, however, limit or otherwise affect the obligation of the3732    





 







90   55802528_20   Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of3733   any conflict between the accounts and records maintained by any Lender and the accounts and3734   records of the Administrative Agent in respect of such matters, the accounts and records of the3735   Administrative Agent shall control in the absence of manifest error. Upon the request of any3736   Lender made through the Administrative Agent, the Borrower shall execute and deliver to the3737   Administrative Agent a Note for such Lender, which shall evidence such Lender’s Loans in3738   addition to such accounts or records. Each Lender may attach schedules to its Note and endorse3739   thereon the date, Type (if applicable), amount and maturity of its Loans and payments with3740   respect thereto.3741   (b) In addition to the accounts and records referred to in subsection (a), each3742   Revolving Credit Lender and the Administrative Agent shall maintain in accordance with its3743   usual practice accounts or records evidencing the purchases and sales by such Revolving Credit3744   Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict3745   between the accounts and records maintained by the Administrative Agent and the accounts and3746   records of any Revolving Credit Lender in respect of such matters, the accounts and records of3747   the Administrative Agent shall control in the absence of manifest error.3748   Section 2.14. [Reserved].3749   Section 2.15. [Reserved].3750   Section 2.16. Cash Collateral.3751   (a) Certain Credit Support Events. Upon the request of the Administrative3752   Agent or the L/C Issuer if the L/C Issuer has honored any full or partial drawing request under3753   any Letter of Credit and such drawing has resulted in an L/C Borrowing or if, as of the L/C3754   Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall3755   immediately Cash Collateralize the then Outstanding Amount of the L/C Obligations. If the3756   Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all L/C3757   Obligations at such time exceeds 103% of the L/C Sublimit, then, within two Business Days3758   after receipt of such notice, the Borrower shall Cash Collateralize the L/C Obligations in an3759   amount equal to the amount by which the Outstanding Amount of all L/C Obligations exceeds3760   the L/C Sublimit. At any time that there shall exist a Defaulting Lender, immediately upon the3761   request of the Administrative Agent, the L/C Issuer or the Swingline Lender, the Borrower shall3762   deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting3763   Exposure (after giving effect to Section 2.17(a)(vii) and any Cash Collateral provided by the3764   Defaulting Lender). At any time that there shall exist a Defaulting Lender, promptly upon the3765   request of the Administrative Agent, the L/C Issuer or the Swingline Lender, the Borrower shall3766   deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting3767   Exposure or other Adequate Assurance (after giving effect to Section 2.17(a)(vii) and any Cash3768   Collateral or other Adequate Assurance provided by the Defaulting Lender). Additionally, if the3769   Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all L/C3770   Obligations at such time exceeds 103% of the L/C Sublimit then in effect, then within two (2)3771   Business Days after receipt of such notice, the Borrower shall provide Cash Collateral for the3772   Outstanding Amount of the L/C Obligations in an amount not less than the amount by which the3773   Outstanding Amount of all L/C Obligations exceeds the L/C Sublimit.3774    





 







91   55802528_20   (b) Grant of Security Interest. All Cash Collateral (other than credit support3775   not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing3776   deposit accounts with the Administrative Agent. The Borrower, and to the extent provided by3777   any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of)3778   the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the3779   Revolving Credit Lenders (including the Swingline Lender), and agrees to maintain, a first3780   priority security interest in all such cash, deposit accounts and all balances therein, and all other3781   property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as3782   security for the obligations to which such Cash Collateral may be applied pursuant to Section3783   2.16(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any3784   right or claim of any Person other than the Administrative Agent as herein provided, or that the3785   total amount of such Cash Collateral is less than the applicable Fronting Exposure and other3786   obligations secured thereby, the Borrower or the relevant Defaulting Lender will, promptly upon3787   demand by the Administrative Agent, pay or provide to the Administrative Agent additional3788   Cash Collateral in an amount sufficient to eliminate such deficiency.3789   (c) Application. Notwithstanding anything to the contrary contained in this3790   Credit Agreement, Cash Collateral provided under any of this Section 2.16 or Sections 2.03,3791   2.04, 2.06, 2.17 or 9.02 in respect of Letters of Credit or Swingline Loans shall be held and3792   applied to the satisfaction of the specific L/C Obligations, Swingline Loans, obligations to fund3793   participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any3794   interest accrued on such obligation) and other obligations for which the Cash Collateral was so3795   provided, prior to any other application of such property as may be provided for herein.3796   (d) Release. Cash Collateral (or the appropriate portion thereof) provided to3797   reduce Fronting Exposure or other obligations shall be released promptly following (i) the3798   elimination of the applicable Fronting Exposure or other obligations giving rise thereto3799   (including by the termination of Defaulting Lender status of the applicable Lender (or, as3800   appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the3801   Administrative Agent’s good faith determination that there exists excess Cash Collateral;3802   provided, however, (x) that Cash Collateral furnished by or on behalf of a Credit Party shall not3803   be released during the continuance of an Event of Default (and following application as provided3804   in this Section 2.16 shall be applied in accordance with Section 9.03), and (y) the Person3805   providing Cash Collateral and the L/C Issuer or the Swingline Lender, as applicable, may agree3806   that Cash Collateral shall not be released but instead held to support future anticipated Fronting3807   Exposure or other obligations.3808   Section 2.17. Defaulting Lenders.3809   (a) Adjustments. Notwithstanding anything to the contrary contained in this3810   Credit Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such3811   Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:3812   (i) [reserved];3813   (ii) [reserved];3814    





 







92   55802528_20   (iii) the Defaulting Lender shall not be entitled to vote, or participate in3815   amendments, waivers or consents hereunder or in respect of the other Credit3816   Documents, except as may be expressly provided herein;3817   (iv) the Defaulting Lender may be replaced and its interests assigned as3818   provided in Section 11.13; all payments of principal, interest and other amounts3819   owing to a Defaulting Lender will be paid into an account or subaccount with the3820   Administrative Agent (collectively, the “Defaulting Lender Account”) to secure3821   the Defaulting Lender’s obligations under this Credit Agreement;3822   (v) amounts held in the Defaulting Lender Account shall be applied at3823   such time or times as may be determined by the Administrative Agent as follows:3824   first, to the payment of any amounts owing by that Defaulting Lender to the3825   Administrative Agent hereunder; second, to the payment on a pro rata basis of any3826   amounts owing by that Defaulting Lender to the L/C Issuer or the Swingline3827   Lender hereunder; third, if so determined by the Administrative Agent or3828   requested by the L/C Issuer or the Swingline Lender, to be held as Cash Collateral3829   for future funding obligations of that Defaulting Lender of any participation in3830   any Swingline Loan or Letter of Credit; fourth, as the Borrower may request (so3831   long as no Default or Event of Default exists), to the funding of any Loan in3832   respect of which that Defaulting Lender has failed to fund its portion thereof as3833   required by this Credit Agreement, as determined by the Administrative Agent;3834   fifth, if so determined by the Administrative Agent and the Borrower, to be held in3835   a non-interest bearing deposit account and released pro rata in order to satisfy3836   obligations of that Defaulting Lender to fund Loans under this Credit Agreement;3837   sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or the3838   Swingline Lender as a result of any judgment of a court of competent jurisdiction3839   obtained by any Lender, the L/C Issuer or the Swingline Lender against that3840   Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations3841   under this Credit Agreement; seventh, so long as no Default or Event of Default3842   exists, to the payment of any amounts owing to the Borrower as a result of any3843   judgment of a court of competent jurisdiction obtained by the Borrower against3844   that Defaulting Lender as a result of that Defaulting Lender’s breach of its3845   obligations under this Credit Agreement; and eighth, to that Defaulting Lender or3846   as otherwise directed by a court of competent jurisdiction; provided that if (x)3847   such payment is a payment of the principal amount of any Loans or L/C3848   Borrowings in respect of which that Defaulting Lender has not fully funded its3849   appropriate share and (y) such Loans or L/C Borrowings were made at a time3850   when the conditions set forth in Section 5.02 were satisfied or waived, such3851   payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to,3852   all non-Defaulting Lenders on a pro rata basis prior to being applied to the3853   payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender3854   until such time as all Loans and funded and unfunded participations in L/C3855   Obligations and Swingline Loans are held by the Lenders in accordance with their3856   respective Aggregate Commitment Percentage under the applicable Facility3857   without giving effect to Section 2.17(a)(vii). Any payments, prepayments or3858   other amounts paid or payable to a Defaulting Lender that are applied (or held) to3859    





 







93   55802528_20   pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to3860   this Section 2.17(a)(v) shall be deemed paid to and redirected by that Defaulting3861   Lender, and each Lender irrevocably consents hereto;3862   (vi) the Defaulting Lenders shall not be entitled to receive any3863   Commitment Fee, facility fee, letter of credit fee or other fees hereunder (which3864   fees may be retained by the Borrower rather than paid into the Defaulting Lender3865   Account); and3866   (vii) during any period in which there is a Defaulting Lender, for3867   purposes of computing the amount of the obligation of each non-Defaulting3868   Lender to acquire, refinance or fund participations in Letters of Credit or3869   Swingline Loans pursuant to Sections 2.03 and 2.04, the “Aggregate Commitment3870   Percentage” of each non-Defaulting Lender shall be computed without giving3871   effect to the Revolving Credit Commitment of that Defaulting Lender; provided3872   that (A) each such reallocation shall be given effect only if, at the date the3873   applicable Lender becomes a Defaulting Lender, no Event of Default exists; and3874   (B) the aggregate obligation of each non-Defaulting Lender to acquire, refinance3875   or fund participations in Letters of Credit and Swingline Loans shall not exceed3876   the positive difference, if any, of (1) the Revolving Credit Commitment of that3877   non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the3878   Revolving Credit Obligations of that Lender.3879   (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the3880   Swingline Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting3881   Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so3882   notify the parties hereto, whereupon as of the effective date specified in such notice and subject3883   to any conditions set forth therein (which may include arrangements with respect to any Cash3884   Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding3885   Loans of the other Lenders or take such other actions as the Administrative Agent may determine3886   to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in3887   Letters of Credit and Swingline Loans to be held on a pro rata basis by the Revolving Credit3888   Lenders in accordance with their Aggregate Commitment Percentages (without giving effect to3889   Section 2.17(a)(vii)), whereupon that Lender will cease to be a Defaulting Lender; provided that3890   no adjustments will be made retroactively with respect to fees accrued or payments made by or3891   on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that3892   except to the extent otherwise expressly agreed by the affected parties, no change hereunder3893   from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party3894   hereunder arising from that Lender’s having been a Defaulting Lender.3895   Section 2.18. Incremental Facilities.3896   (a) Incremental Commitments. The Borrower (or in the case of Escrow3897   Incremental Term Loans, the Escrow Borrower) may, by written notice to the Administrative3898   Agent from time to time, request Incremental Commitments, which may be of the same Class as3899   any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans and/or one3900   or more increases in the amount of the Revolving Credit Commitments (a “Revolving3901    





 







94   55802528_20   Commitment Increase”) or the establishment of one or more new revolving credit commitments.3902   Such notice shall set forth: (i) the amount of the Incremental Commitments being requested3903   (which shall be in a minimum amount of $5,000,000; provided that such amount may be less3904   than $5,000,000 if such amount represents all remaining availability under the limit set forth in3905   Section 2.18(c)(ii)), (ii) the date on which such Incremental Commitments are requested to3906   become effective, (iii) whether such Incremental Commitments are Incremental Revolving3907   Commitments or Incremental Term Commitments and (iv) whether such Incremental3908   Commitments will constitute Escrow Incremental Term Loans. The Borrower may in its sole3909   discretion seek Incremental Commitments from existing Lenders (each of which shall be entitled3910   to agree or decline to participate in its sole discretion) or any Additional Lender.3911   (b) Incremental Loans. On the applicable date (each, an “Incremental3912   Facility Closing Date”) specified in any Incremental Amendment, subject to the satisfaction of3913   the terms and conditions in this Section 2.18 and in the applicable Incremental Amendment, (i)3914   (A) each Incremental Term Lender of such Class shall make an Incremental Term Loan to the3915   Borrower in an amount equal to its Incremental Term Commitment of such Class and (B) each3916   Incremental Term Lender of such Class shall become a Lender hereunder with respect to the3917   Incremental Term Commitment of such Class and the Incremental Term Loans of such Class3918   made pursuant thereto and (ii) (A) each Incremental Revolving Lender of such Class shall make3919   its Commitment available to the Borrower in an amount equal to its Incremental Revolving3920   Commitment of such Class and (B) each Incremental Revolving Lender of such Class shall3921   become a Lender hereunder with respect to the Incremental Revolving Commitment of such3922   Class and the Incremental Revolving Loans of such Class made pursuant thereto.3923   (c) Effectiveness of Incremental Amendment. The effectiveness of any3924   Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the3925   satisfaction on the applicable date (which shall be no earlier than the date of such Incremental3926   Amendment) specified therein (the “Incremental Amendment Date”) of each of the following3927   conditions, together with any other conditions set forth in the Incremental Amendment:3928   (i) after giving effect to such Incremental Commitments, the3929   conditions of Section 5.02 shall be satisfied (it being understood that all3930   references to “the date of such Credit Extension” or similar language in such3931   Section 5.02 shall be deemed to refer to the Incremental Amendment Date);3932   provided that in connection with any Incremental Commitment, the primary3933   purpose of which is to finance a Limited Condition Transaction, if agreed by the3934   Incremental Lenders providing such Incremental Commitments, the conditions set3935   forth in clauses (a) and (b) (other than with respect to any Event of Default under3936   Section 9.01(a) or (f)) of Section 5.02 may be agreed not to apply and excluded in3937   the relevant Incremental Amendment and the condition set forth in clause (c) of3938   Section 5.02 may be satisfied by the delivery of a Request for Credit Extension3939   within such lesser time period as agreed by such Incremental Lenders, the3940   Administrative Agent and the Borrower;3941   (ii) (A) after giving Pro Forma Effect to both (x) the making of3942   Incremental Term Loans or establishment of Incremental Revolving3943   Commitments (assuming a borrowing of the maximum amount of Loans available3944    





 







95   55802528_20   thereunder) under such Incremental Amendment and (y) any Specified3945   Transactions consummated in connection therewith, the Consolidated Total Net3946   Leverage Ratio does not exceed 2.50:1.00; or (B) together with the Incremental3947   Term Loans made and Incremental Revolving Commitments established under3948   such Incremental Amendment, the aggregate principal amount of Incremental3949   Term Loans made, Incremental Equivalent Debt deemed incurred and Incremental3950   Revolving Commitments established under this clause (B) does not exceed3951   $100,000,000; provided that it is understood that (1) Incremental Term Loans and3952   Incremental Revolving Commitments may be incurred under either clause (A) or3953   clause (B) as selected by the Borrower in its sole discretion, including by3954   designating any portion of Incremental Commitments in excess of an amount3955   permitted to be incurred under clause (A) at the time of such incurrence as3956   incurred under clause (B); and3957   (iii) to the extent reasonably requested by the Administrative Agent,3958   receipt by the Administrative Agent of (A) customary legal opinions, board3959   resolutions and officers’ certificates (including a solvency certificate) consistent3960   with those delivered on the Closing Date (conformed as appropriate) other than3961   changes to such legal opinions resulting from a Change in Law, change in fact or3962   change to counsel’s form of opinion reasonably satisfactory to the Administrative3963   Agent and (B) reaffirmation agreements and/or such amendments to the Collateral3964   Documents as may be reasonably requested by the Administrative Agent in order3965   to ensure that such Incremental Commitments and extensions of credit thereunder3966   are provided with the benefit of the applicable Credit Documents.3967   (d) Required Terms. The terms, provisions and documentation of the3968   Incremental Term Loans and Incremental Term Commitments or the Incremental Revolving3969   Loans and Incremental Revolving Commitments, as the case may be, of any Class shall be as3970   agreed between the Borrower and the applicable Incremental Lenders providing such3971   Incremental Commitments, and except as otherwise set forth herein, to the extent not identical to3972   any Class of Term Loans or Revolving Credit Commitments, as applicable, each existing on the3973   Incremental Facility Closing Date, shall be consistent with clauses (i) and (ii) below, as3974   applicable, and otherwise (a) conformed (or added) in the Credit Documents pursuant to the3975   related Incremental Amendment for the benefit of all Lenders, (b) applicable only to periods3976   after the Latest Maturity Date as of the Incremental Amendment Date or (c) reasonably3977   satisfactory to the Administrative Agent; provided that in the case of a Term Loan Increase or a3978   Revolving Commitment Increase, the terms, provisions and documentation (other than the3979   Incremental Amendment evidencing such increase) of such Term Loan Increase or Revolving3980   Commitment Increase shall be identical (other than with respect to upfront fees, OID or similar3981   fees) to the applicable Class of Term Loans or Revolving Credit Commitments being increased,3982   in each case, as existing on the Incremental Facility Closing Date (after giving effect to Section3983   2.18(e)). In any event:3984   (i) the Incremental Term Loans:3985   (A) (I) shall rank pari passu in right of payment with the3986   Obligations, (II) shall be secured by the Collateral and shall rank pari3987    





 







96   55802528_20   passu in right of security with the Obligations and (III) shall be guaranteed3988   by the Guarantors;3989   (B) as of the Incremental Amendment Date, shall not have a3990   final scheduled maturity date earlier than the Maturity Date of the Initial3991   Term Loans;3992   (C) (I) as of the Incremental Amendment Date, shall have a3993   Weighted Average Life to Maturity not shorter than the remaining3994   Weighted Average Life to Maturity of the Initial Term Loans and (II)3995   subject to the foregoing, shall have an amortization schedule as3996   determined by the Borrower and the applicable Incremental Term Loan3997   arranger(s);3998   (D) shall have an all-in-yield (whether in the form of interest3999   rate margin, OID or otherwise) determined by the Borrower and the4000   applicable Incremental Term Lenders; provided that the Applicable4001   Percentage and amortization for a Term Loan Increase shall be (I) the4002   Applicable Percentage and amortization for the Class being increased or4003   (II) higher than the Applicable Percentage for the Class being increased as4004   long as the Applicable Percentage for the Class being increased shall be4005   automatically increased as and to the extent necessary to eliminate such4006   deficiency;4007   (E) shall have fees determined by the Borrower and the4008   applicable Incremental Term Loan arranger(s); and4009   (F) may participate on (I) a pro rata basis, less than pro rata4010   basis or greater than pro rata basis in any voluntary prepayments of Term4011   Loans hereunder and (II) a pro rata basis or less than pro rata basis (but4012   not on a greater than pro rata basis (except for prepayments of any Class4013   or Classes of Term Loans with a Maturity Date preceding the Maturity4014   Date of the remaining Classes of Term Loans then outstanding or made4015   with the proceeds of Refinancing Facilities)) in any mandatory4016   prepayments of Term Loans hereunder;4017   (ii) the Incremental Revolving Commitments and Incremental4018   Revolving Loans:4019   (A) (I) shall rank pari passu in right of payment with the4020   Obligations, (II) shall be secured by the Collateral and shall rank pari4021   passu in right of security with the Obligations and (III) shall be guaranteed4022   by the Guarantors;4023   (B) (I) shall not have a final scheduled maturity date or4024   commitment reduction date earlier than the Maturity Date with respect to4025   the Initial Revolving Credit Commitments and (II) shall not have any4026    





 







97   55802528_20   scheduled amortization or mandatory commitment reduction prior to the4027   Maturity Date with respect to the Initial Revolving Credit Commitments;4028   (C) shall have an all-in-yield (whether in the form of interest4029   rate margin, OID or otherwise) determined by the Borrower and the4030   applicable Incremental Revolving Lenders; provided that the Applicable4031   Percentage for a Revolving Commitment Increase shall be (I) the4032   Applicable Percentage for the Class being increased or (II) higher than the4033   Applicable Percentage for the Class being increased as long as the4034   Applicable Percentage for the Class being increased shall be automatically4035   increased as and to the extent necessary to eliminate such deficiency;4036   (D) shall have fees determined by the Borrower and the4037   applicable Incremental Revolving Commitment arranger(s);4038   (E) shall provide that the borrowing and repayment (except for4039   (1) payments of interest and fees at different rates on Incremental4040   Revolving Commitments (and related outstandings), (2) repayments4041   required upon the Maturity Date of the Incremental Revolving4042   Commitments and (3) repayment made in connection with a permanent4043   repayment and termination of commitments (in accordance with clause (F)4044   below)) of Loans with respect to Incremental Revolving Commitments4045   after the associated Incremental Facility Closing Date shall be made on a4046   pro rata basis or less than a pro rata basis (but not more than a pro rata4047   basis) with all other Revolving Credit Commitments then existing on the4048   Incremental Facility Closing Date; and4049   (F) may provide that the permanent repayment of Revolving4050   Credit Loans with respect to, and termination or reduction of, Incremental4051   Revolving Commitments after the associated Incremental Facility Closing4052   Date be made on a pro rata basis or less than pro rata basis (but not on a4053   greater than pro rata basis other than with respect to any termination of4054   undrawn Revolving Credit Commitments or a permanent repayment of4055   any Class of Revolving Credit Commitments (1) with the proceeds of a4056   Refinancing Facility or (2) that mature earlier than other outstanding4057   Classes of Revolving Credit Commitments) with all other Revolving4058   Credit Commitments.4059   (e) Incremental Amendment. Commitments in respect of Incremental Term4060   Loans and Incremental Revolving Commitments shall become additional Commitments pursuant4061   to an amendment (an “Incremental Amendment”) to this Credit Agreement and, as appropriate,4062   the other Credit Documents, executed by the Borrower, each Incremental Lender providing such4063   Commitments, the Administrative Agent and, for purposes of any election and/or increase to the4064   Swingline Sublimit or L/C Sublimit, the Swingline Lender and each L/C Issuer. The Incremental4065   Amendment may, without the consent of any other Credit Party, the Administrative Agent or4066   Lender, effect such amendments to this Credit Agreement and the other Credit Documents as4067   may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the4068    





 







98   55802528_20   Borrower, to effect the provisions of this Section 2.18, including any amendments necessary to4069   establish the Incremental Loans and/or Incremental Commitments as a new Class of Loans, to4070   provide to the Lenders of any Class of Loans or Commitments hereunder the benefit of any term4071   or provision that is added under any Incremental Amendment for the benefit of the Lenders of an4072   Incremental Facility (including to the extent necessary or advisable to allow any Incremental4073   Facility to be an Incremental Increase) and such other technical amendments as may be4074   necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower4075   in connection with the establishment of such new Class or tranche, in each case on terms4076   consistent with this Section 2.18. The Borrower will use the proceeds of the Incremental Term4077   Loans and Incremental Revolving Commitments for any purpose not prohibited by this4078   Agreement.4079   (f) Reallocation of Revolving Credit Exposure. Upon any Incremental4080   Facility Closing Date on which Incremental Revolving Commitments are effected through4081   Refinancing Amendment pursuant to this Section 2.18, (a) each of the Revolving Credit Lenders4082   shall assign to each of the Incremental Revolving Lenders, and each of the Incremental4083   Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal4084   amount thereof, such interests in the Incremental Revolving Loans outstanding on such4085   Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all4086   such assignments and purchases, such Revolving Credit Loans will be held by existing4087   Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their4088   Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving4089   Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving4090   Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan4091   made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each4092   Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving4093   Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby4094   agree that the minimum borrowing and prepayment requirements in Section 2.02(a) and4095   2.06(a)(i) of this Agreement shall not apply to the transactions effected pursuant to the4096   immediately preceding sentence.4097   (g) The Incremental Term Loans made under each Term Loan Increase shall4098   be made by the applicable Lenders participating therein pursuant to the procedures set forth in4099   Section 2.01 and 2.02 and on the date of the making of such Incremental Term Loans, and4100   notwithstanding anything to the contrary set forth in Section 2.01 and 2.02, such Incremental4101   Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans4102   under the applicable Class of Term Loans on a pro rata basis (based on the relative sizes of the4103   various outstanding Borrowings), so that each Lender under such Class will participate4104   proportionately in each then outstanding Borrowing of Term Loans of such Class; provided that4105   Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or4106   any other Credit Document for any purposes hereof (including, without limitation, for purposes4107   of any financial calculation, the definition of “Obligations,” the definition of “Required Lenders”4108   or Section 9 or Section 11.01 hereof) and the obligations with respect thereto shall not be4109   recourse to any Credit Party, in each case, unless and until the Escrow Assumption with respect4110   thereto has occurred and the Escrow Assumption shall only be permitted if the conditions set4111   forth in section 2.18(c) are satisfied as of the date of such Escrow Assumption.4112    





 







99   55802528_20   (h) This Section 2.18 shall supersede any provisions in Section 2.12 or 11.014113   to the contrary.4114   Section 2.19. Amend and Extend Transactions.4115   (a) The Borrower may, by written notice to the Administrative Agent from4116   time to time, request an extension (each, an “Extension”) of the maturity or termination date of4117   any Class of Revolving Credit Commitments and/or Term Loans to the extended maturity or4118   termination date specified in such notice. Such notice shall set forth (i) the amount of the4119   applicable Class of Revolving Credit Commitments and/or Term Loans to be extended (which4120   shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the4121   date on which such Extensions are requested to become effective (which shall be not less than4122   five (5) Business Days nor more than 60 days after the date of such Extension request (or such4123   longer or shorter periods as the Administrative Agent shall reasonably agree)) and (iii)4124   identifying the relevant Class of Revolving Credit Commitments and/or Term Loans to which4125   the Extension request relates. Each Lender of the applicable Class shall be offered (an4126   “Extension Offer”) an opportunity to participate in such Extension on a pro rata basis and on the4127   same terms and conditions as each other Lender of such Class pursuant to procedures established4128   by, or reasonably acceptable to, the Administrative Agent. If the aggregate principal amount of4129   Term Loans (calculated on the face amount thereof) or Revolving Credit Commitments in4130   respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the4131   maximum aggregate principal amount of Term Loans or Revolving Credit Commitments, as4132   applicable, offered to be extended by the Borrower pursuant to such Extension Offer, then the4133   Term Loans or Revolving Credit Commitments, as applicable, of Lenders of the applicable Class4134   shall be extended ratably up to such maximum amount based on the respective principal amounts4135   (but not to exceed actual holdings of record) with respect to which such Lenders have accepted4136   such Extension Offer.4137   (b) It shall be a condition precedent to the effectiveness of any Extension that4138   (i) no Default or Event of Default shall have occurred and be continuing immediately prior to4139   and immediately after giving effect to such Extension, (ii) the representations and warranties set4140   forth in Article 6 and in each other Credit Document shall be true and correct in all material4141   respects on and as of the date of such Extension, (iii) the L/C Issuer and the Swingline Lender4142   shall have consented to any Extension of the Revolving Credit Commitments, to the extent that4143   such extension provides for the issuance of Letters of Credit or making of Swingline Loans at4144   any time during the extended period and (iv) the terms of such Extended Revolving4145   Commitments and Extended Term Loans shall comply with Section 2.19(c).4146   (c) The terms of each Extension shall be determined by the Borrower and the4147   applicable extending Lender and set forth in an Extension Amendment; provided that (i) the final4148   maturity date of any Extended Term Loan or Extended Revolving Commitment shall be no4149   earlier than the maturity or termination date of the Class of Term Loans or Revolving Credit4150   Commitments being extended, (ii) (A) there shall be no scheduled amortization or mandatory4151   commitment reduction of the Extended Revolving Commitments and (B) the Weighted Average4152   Life to Maturity of the Extended Term Loans shall be no shorter than the remaining Weighted4153   Average Life to Maturity of the Class of Term Loans being extended, (iii) the Extended4154   Revolving Loans and the Extended Term Loans will rank pari passu in right of payment and4155    





 







100   55802528_20   with respect to security with the Revolving Credit Loans and the Term Loans and shall be4156   guaranteed by the Guarantors, (iv) the interest rate margin, rate floors, fees, original issue4157   discounts and premiums applicable to any Extended Term Loans or Extended Revolving4158   Commitments (and the Extended Revolving Loans thereunder) shall be determined by the4159   Borrower and the lenders providing such Extended Term Loans or Extended Revolving4160   Commitments, as applicable, (v) none of the obligors or guarantors with respect to such4161   Extended Term Loans or Extended Revolving Commitments shall be a Person that is not a Credit4162   Party and (vi) to the extent the terms of the Extended Term Loans or the Extended Revolving4163   Commitments are inconsistent with the terms set forth herein (except as set forth in clause (i)4164   through (v) above), such terms shall be reasonably satisfactory to the Administrative Agent.4165   (d) In connection with any Extension, the Borrower, the Administrative Agent4166   and each applicable extending Lender shall execute and deliver to the Administrative Agent an4167   amendment (an “Extension Amendment”) and such other documentation as the Administrative4168   Agent shall reasonably specify to evidence the Extension. The Administrative Agent shall4169   promptly notify each Lender as to the effectiveness of each Extension. Any Extension4170   Amendment may, without the consent of any other Lender, effect such amendments to this4171   Agreement and the other Credit Documents as may be necessary or appropriate, in the4172   reasonable opinion of the Administrative Agent and the Borrower, to implement the terms of any4173   such Extension, including any amendments necessary to establish Extended Term Loans or4174   Extended Revolving Commitments as a new Class or tranche of Term Loans or Revolving Credit4175   Commitments, as applicable, and such other technical amendments as may be necessary or4176   appropriate in the reasonable opinion of the Administrative Agent and the Borrower in4177   connection with the establishment of such new Class or tranche (including to preserve the pro4178   rata treatment of the extended and non-extended Classes and to provide for the reallocation of4179   participation in Letters of Credit or Swingline Loans upon the expiration or termination of the4180   commitments under any Class), in each case on terms not inconsistent with this Section 2.19).4181   Section 2.20. Refinancing Facilities.4182   (a) The Borrower may, by written notice to the Administrative Agent from4183   time to time, request (x) Refinancing Revolving Commitments to replace all or a portion of any4184   existing Class of Revolving Credit Commitments and (y) Refinancing Term Loans to refinance4185   all or a portion of any existing Class of Term Loans (with respect to a particular Refinancing4186   Commitment or Refinancing Loan, such existing Revolving Credit Commitments or Loans,4187   “Refinanced Debt”). Such notice shall set forth (i) the amount of the applicable Refinancing4188   Facility (which shall be in minimum increments of $1,000,000 and a minimum amount of4189   $5,000,000), (ii) the date on which the applicable Refinancing Facility is to become effective and4190   (iii) whether such Refinancing Facilities are Refinancing Revolving Commitments or4191   Refinancing Term Loans. The Borrower may in its sole discretion seek Refinancing Facilities4192   from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole4193   discretion) or any Additional Lender.4194   (b) Refinancing Loans. On any Refinancing Facility Closing Date on which4195   any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the4196   terms and conditions in this Section 2.20, (i) each Refinancing Term Lender of such Class shall4197   make a Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its4198    





 







101   55802528_20   Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such4199   Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of4200   such Class and the Refinancing Term Loans of such Class made pursuant thereto. On any4201   Refinancing Facility Closing Date on which any Refinancing Revolving Commitments of any4202   Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.20, (i)4203   each Refinancing Revolving Lender of such Class shall make its Commitment available to the4204   Borrower (when borrowed, a “Refinancing Revolving Loan” and collectively with any4205   Refinancing Term Loan, a “Refinancing Loan”) in an amount equal to its Refinancing4206   Revolving Commitment of such Class and (ii) each Refinancing Revolving Lender of such Class4207   shall become a Lender hereunder with respect to the Refinancing Revolving Commitment of4208   such Class and the Refinancing Revolving Loans of such Class made pursuant thereto.4209   (c) Effectiveness of Refinancing Amendment. The effectiveness of any4210   Refinancing Amendment, and the Refinancing Commitments thereunder, shall be subject to the4211   satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following4212   conditions, together with any other conditions set forth in the Refinancing Amendment:4213   (i) after giving effect to such Refinancing Commitments, the4214   conditions of Sections 5.02(a) and (b) shall be satisfied (it being understood that4215   all references to “the date of such Credit Extension” or similar language in such4216   Section 5.02 shall be deemed to refer to the effective date of such Refinancing4217   Amendment);4218   (ii) each Refinancing Commitment shall be in an aggregate principal4219   amount that is not less than $5,000,000 and shall be in an increment of $1,000,0004220   (provided that such amount may be less than $5,000,000 and not in an increment4221   of $1,000,000 if such amount is equal to (x) the entire outstanding principal4222   amount of the Refinanced Debt that is in the form of Term Loans or (y) the entire4223   principal amount of Refinanced Debt that is in the form of Revolving Credit4224   Commitments); and4225   (iii) to the extent reasonably requested by the Administrative Agent,4226   receipt by the Administrative Agent of (i) customary legal opinions, board4227   resolutions and officers’ certificates consistent with those delivered on the4228   Closing Date (conformed as appropriate) other than changes to such legal4229   opinions resulting from a Change in Law, change in fact or change to counsel’s4230   form of opinion reasonably satisfactory to the Administrative Agent and (ii)4231   reaffirmation agreements and/or such amendments to the Collateral Documents as4232   may be reasonably requested by the Administrative Agent in order to ensure that4233   such Refinancing Lenders are provided with the benefit of the applicable Credit4234   Documents.4235   (d) Required Terms. The terms, provisions and documentation of the4236   Refinancing Term Loans and Refinancing Term Commitments or the Refinancing Revolving4237   Loans and Refinancing Revolving Commitments, as the case may be, of any Class shall be as4238   agreed between the Borrower and the applicable Refinancing Lenders providing such4239   Refinancing Commitments, and except as otherwise set forth herein, to the extent not identical to4240    





 







102   55802528_20   any Class of Term Loans or Revolving Credit Commitments, as applicable, each existing on the4241   Refinancing Facility Closing Date, shall be consistent with clauses (i) and (ii) below, as4242   applicable, and otherwise reasonably satisfactory to the Administrative Agent. In any event:4243   (i) the Refinancing Term Loans:4244   (A) (I) shall rank pari passu in right of payment with the4245   Obligations, (II) shall be secured by the Collateral and shall rank pari4246   passu in right of security with the Obligations and (III) shall be guaranteed4247   by the Guarantors;4248   (B) as of the Refinancing Facility Closing Date, shall not have4249   a final scheduled maturity date earlier than the Maturity Date of the4250   Refinanced Debt;4251   (C) (I) as of the Refinancing Facility Closing Date, shall not4252   have a Weighted Average Life to Maturity shorter than the remaining4253   Weighted Average Life to Maturity of the Refinanced Debt and (II) shall4254   have an amortization schedule as determined by the Borrower and the4255   applicable Refinancing Lenders;4256   (D) shall have an all-in-yield (whether in the form of interest4257   rate margin, OID or otherwise) determined by the Borrower and the4258   applicable Refinancing Term Lenders;4259   (E) shall have fees determined by the Borrower and the4260   applicable Refinancing Term Loan arranger(s);4261   (F) may participate on (I) a pro rata basis, less than pro rata4262   basis or greater than pro rata basis in any voluntary prepayments of Term4263   Loans hereunder and (II) a pro rata basis or less than pro rata basis (but4264   not on a greater than pro rata basis (except for prepayments of any Class4265   or Classes of Term Loans with a Maturity Date preceding the Maturity4266   Date of the remaining Classes of Term Loans then outstanding or made4267   with the proceeds of Refinancing Facilities)) in any mandatory4268   prepayments of Term Loans hereunder; and4269   (G) shall not have a greater principal amount than the principal4270   amount of the Refinanced Debt plus accrued interest, fees, premiums (if4271   any) and penalties payable by the terms of such tranche of Term Loans4272   and reasonable fees, expenses, OID and upfront fees associated with the4273   incurrence of such Refinancing Term Loans; and4274   (ii) the Refinancing Revolving Commitments and Refinancing4275   Revolving Loans:4276   (A) (I) shall rank pari passu in right of payment with the4277   Obligations, (II) shall be secured by the Collateral and shall rank pari4278    





 







103   55802528_20   passu in right of security with the Obligations and (III) shall be guaranteed4279   by the Guarantors;4280   (B) shall not have a final scheduled maturity date or4281   commitment reduction date earlier than the Maturity Date or commitment4282   reduction date, respectively, with respect to the Refinanced Debt;4283   (C) shall have an all-in-yield (whether in the form of interest4284   rate margin, OID or otherwise) determined by the Borrower and the4285   applicable Refinancing Revolving Lenders;4286   (D) shall have fees determined by the Borrower and the4287   applicable Refinancing Revolving Commitments arranger(s);4288   (E) shall provide that the borrowing and repayment (except for4289   (1) payments of interest and fees at different rates on Refinancing4290   Revolving Commitments (and related outstandings), (2) repayments4291   required upon the Maturity Date of the Refinancing Revolving4292   Commitments and (3) repayment made in connection with a permanent4293   repayment and termination of commitments (in accordance with clause (F)4294   below)) of Loans with respect to Refinancing Revolving Commitments4295   after the associated Refinancing Facility Closing Date shall be made on a4296   pro rata basis or less than a pro rata basis (but not more than a pro rata4297   basis) with all other Revolving Credit Commitments then existing on the4298   Refinancing Facility Closing Date,4299   (F) may provide that the permanent repayment of Revolving4300   Credit Loans with respect to, and termination or reduction of, Refinancing4301   Revolving Commitments after the associated Refinancing Facility Closing4302   Date be made on a pro rata basis or less than pro rata basis (but not on a4303   greater than pro rata basis other than with respect to any termination of4304   undrawn Revolving Credit Commitments or a permanent repayment of4305   any Class of Revolving Credit Commitments (1) with the proceeds of a4306   Refinancing Facility or (2) that mature earlier than other outstanding4307   Classes of Revolving Credit Commitments) with all other Revolving4308   Credit Commitments, and4309   (G) shall not have a greater principal amount than the principal4310   amount of the Refinanced Debt plus accrued interest, fees, premiums (if4311   any) and penalties payable by the terms of such tranche of Term Loans4312   and reasonable fees, expenses, OID and upfront fees associated with the4313   incurrence of such Refinancing Revolving Commitments;4314   (e) Refinancing Amendment. Commitments in respect of Refinancing Term4315   Loans and Refinancing Revolving Commitments shall become additional Commitments pursuant4316   to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the4317   other Credit Documents, executed by the Borrower, each Refinancing Lender providing such4318    





 







104   55802528_20   Commitments and the Administrative Agent. The Refinancing Amendment may, without the4319   consent of any other Credit Party, Administrative Agent or Lender, effect such amendments to4320   this Agreement and the other Credit Documents as may be necessary or appropriate, in the4321   reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this4322   Section 2.20, including any amendments necessary to establish the Refinancing Loans and/or4323   Refinancing Commitments as a new Class or tranche of Loans and such other technical4324   amendments as may be necessary or appropriate in the reasonable opinion of the Administrative4325   Agent and the Borrower in connection with the establishment of such new Class or tranche4326   (including to preserve the pro rata treatment of the refinanced and non-refinanced Classes or4327   tranches and to provide for the reallocation of participation in Letters of Credit or Swingline4328   Loans upon the expiration or termination of the commitments under any Class or tranche), in4329   each case on terms consistent with this Section 2.20. The Borrower will use the proceeds of the4330   Refinancing Term Loans and Refinancing Revolving Commitments to extend, renew, replace,4331   repurchase, retire or refinance, substantially concurrently, the applicable Refinanced Debt.4332   (f) Reallocation of Revolving Credit Exposure. Upon any Refinancing4333   Facility Closing Date on which Refinancing Revolving Commitments are effected pursuant to4334   this Section 2.20, (a) each of the Revolving Credit Lenders shall assign to each of the4335   Refinancing Revolving Lenders, and each of the Refinancing Revolving Lenders shall purchase4336   from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the4337   Refinancing Revolving Loans outstanding on such Refinancing Facility Closing Date as shall be4338   necessary in order that, after giving effect to all such assignments and purchases, such Revolving4339   Credit Loans will be held by existing Revolving Credit Lenders and Refinancing Revolving4340   Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to4341   the addition of such Refinancing Revolving Commitments to the Revolving Credit4342   Commitments, (b) each Refinancing Revolving Commitment shall be deemed for all purposes a4343   Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all4344   purposes, a Revolving Credit Loan and (c) each Refinancing Revolving Lender shall become a4345   Lender with respect to the Incremental Revolving Commitments and all matters relating thereto.4346   The Administrative Agent and the Lenders hereby agree that the minimum borrowing and4347   prepayment requirements in Section 2.02(a) and 2.06(a)(i) of this Agreement shall not apply to4348   the transactions effected pursuant to the immediately preceding sentence.4349   (g) This Section 2.20 shall supersede any provisions in Section 2.12 or 11.014350   to the contrary.4351   ARTICLE 34352   TAXES, YIELD PROTECTION AND ILLEGALITY4353   Section 3.01. Taxes.4354   (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of4355   Taxes.4356   (i) Any and all payments by or on account of any obligation of the4357   Credit Parties hereunder or under any other Credit Document shall to the extent4358   permitted by applicable Laws be made free and clear of and without reduction or4359    





 







105   55802528_20   withholding for any Taxes. If, however, applicable Laws require any Credit Party4360   or the Administrative Agent to withhold or deduct any Tax, such Tax shall be4361   withheld or deducted in accordance with such Laws as determined by such Credit4362   Party or the Administrative Agent, as the case may be, upon the basis of the4363   information and documentation to be delivered pursuant to subsection (e) below.4364   (ii) If the Credit Parties or the Administrative Agent shall be required4365   by the Internal Revenue Code to withhold or deduct any Taxes, including both4366   United States federal backup withholding and withholding taxes, from any4367   payment, then (A) the Administrative Agent shall withhold or make such4368   deductions as are determined by the Administrative Agent to be required based4369   upon the information and documentation it has received pursuant to subsection (e)4370   below, (B) the Administrative Agent shall timely pay the full amount withheld or4371   deducted to the relevant Governmental Authority in accordance with the Internal4372   Revenue Code, and (C) to the extent that the withholding or deduction is made on4373   account of Indemnified Taxes or Other Taxes, the sum payable by the Credit4374   Parties shall be increased as necessary so that after any required withholding or4375   the making of all required deductions (including any withholding or deductions4376   applicable to additional sums payable under this Section) the Administrative4377   Agent, any Lender or the L/C Issuer, as the case may be, receives an amount4378   equal to the sum it would have received had no such withholding or deduction4379   been made.4380   (iii) If any Credit Party or the Administrative Agent shall be required4381   by any applicable Laws other than the Internal Revenue Code to withhold or4382   deduct any Taxes from any payment, then such Credit Party or the Administrative4383   Agent, as required by such Laws, shall withhold or make such deductions as are4384   determined by it to be required based upon the information and documentation it4385   has received pursuant to subsection (e) below, such Credit Party or the4386   Administrative Agent, to the extent required by such Laws, shall timely pay the4387   full amount so withheld or deducted by it to the relevant Governmental Authority4388   in accordance with such Laws, and to the extent that the withholding or deduction4389   is made on account of Indemnified Taxes or Other Taxes, the sum payable by4390   such Credit Party shall be increased as necessary so that after any required4391   withholding or the making of all required deductions (including any withholding4392   or deductions applicable to additional sums payable under this Section) the4393   Administrative Agent, Lender or L/C Issuer, as the case may be, receives an4394   amount equal to the sum it would have received had no such withholding or4395   deduction been made.4396   (b) Payment of Other Taxes by the Credit Parties. Without duplication of4397   other amounts payable by the Borrower under this Section 3.01, the Credit Parties shall timely4398   pay any Other Taxes to the relevant Governmental Authority, or at the option of the4399   Administrative Agent timely reimburse it for the payment of any Other Taxes, in accordance4400   with applicable Laws.4401   (c) Tax Indemnification.4402    





 







106   55802528_20   (i) Without limiting the provisions of subsection (a) or (b) above, the4403   Credit Parties shall, and do hereby, indemnify the Administrative Agent, each4404   Lender and the L/C Issuer, and shall make payment in respect thereof within 104405   days after demand therefor, for the full amount of any Indemnified Taxes or Other4406   Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or4407   attributable to amounts payable under this Section) paid or payable by the Credit4408   Parties or the Administrative Agent or paid by the Administrative Agent, such4409   Lender or the L/C Issuer, as the case may be, whether or not such Indemnified4410   Taxes or Other Taxes were correctly or legally imposed or asserted by the4411   relevant Governmental Authority. A certificate as to the amount of any such4412   payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with4413   a copy to the Administrative Agent), or by the Administrative Agent on its own4414   behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent4415   manifest error.4416   (ii) Without limiting the provisions of subsection (a) or (b) above, each4417   Lender and the L/C Issuer shall, and does hereby, indemnify each Credit Party4418   and the Administrative Agent, and shall make payment in respect thereof within4419   10 days after demand therefor, against (i) any and all Taxes and any and all4420   related losses, claims, liabilities, penalties, interest and expenses (including the4421   reasonable and documented out-of-pocket fees, charges and disbursements of any4422   counsel for each Credit Party and the Administrative Agent) incurred by or4423   asserted against such Credit Party or the Administrative Agent by any4424   Governmental Authority as a result of the failure by such Lender or the L/C4425   Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy4426   or deficiency of, any documentation required to be delivered by such Lender or4427   the L/C Issuer, as the case may be, to such Credit Party or the Administrative4428   Agent pursuant to subsection (e) and (ii) any Excluded Taxes attributable to such4429   Lender, in each case, that are payable or paid by the Administrative Agent in4430   connection with this Credit Agreement or any other Credit Document, and any4431   reasonable expenses arising therefrom or with respect thereto, whether or not such4432   Taxes were correctly or legally imposed or asserted by the relevant Government4433   Authority. Each Lender and the L/C Issuer hereby authorizes the Administrative4434   Agent to set off and apply any and all amounts at any time owing to such Lender4435   or the L/C Issuer, as the case may be, under this Credit Agreement or any other4436   Credit Document against any amount due to the Administrative Agent under this4437   clause (ii). The agreements in this clause (ii) shall survive the resignation and/or4438   replacement of the Administrative Agent, any assignment of rights by, or the4439   replacement of, a Lender or the L/C Issuer, the termination of the Commitments4440   and the repayment, satisfaction or discharge of all other Obligations.4441   (d) Evidence of Payments. As soon as practicable, after any payment of Taxes4442   by any Credit Party to a Governmental Authority as provided in this Section 3.01, the Credit4443   Party shall deliver (or cause to be delivered) to the Administrative Agent the original or a4444   certified copy of a receipt issued by such Governmental Authority evidencing such payment, a4445   copy of any return required by Law to report such payment or other evidence of such payment4446   reasonably satisfactory to the Administrative Agent.4447    





 







107   55802528_20   (e) Status of Lenders; Tax Documentation.4448   (i) Each Lender shall deliver to the Borrower and to the4449   Administrative Agent, at the time or times prescribed by applicable Laws or when4450   reasonably requested by the Borrower or the Administrative Agent, such properly4451   completed and executed documentation prescribed by applicable Laws or by the4452   taxing authorities of any jurisdiction and such other reasonably requested4453   information as will permit the Borrower or the Administrative Agent, as the case4454   may be, to determine whether or not payments made hereunder or under any other4455   Credit Document are subject to Taxes, if applicable, the required rate of4456   withholding or deduction, such Lender’s entitlement to any available exemption4457   from, or reduction of, applicable Taxes in respect of all payments to be made to4458   such Lender by the Borrower pursuant to this Credit Agreement or otherwise to4459   establish such Lender’s status for withholding tax purposes in the applicable4460   jurisdiction and (D) whether or not payments made hereunder or under any other4461   Credit Document are subject to backup withholding taxes or information reporting4462   requirement. Notwithstanding anything to the contrary in this Section 3.01(e)(i),4463   the completion, execution and submission of such documentation (other than such4464   documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(C) below) shall4465   not be required if in the Lender’s reasonable judgment such completion, execution4466   or submission would subject such Lender to any material unreimbursed cost or4467   expense or would materially prejudice the legal or commercial position of such4468   Lender.4469   (ii) Without limiting the generality of the foregoing, if the Borrower is4470   a resident for tax purposes in the United States:4471   (A) Any Lender that is a “United States person” within the4472   meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver4473   to the Borrower and the Administrative Agent on or prior to the date on4474   which such Lender becomes a Lender under this Credit Agreement (and4475   from time to time thereafter upon the request of such Borrower and the4476   Administrative Agent) executed originals of Internal Revenue Service4477   Form W-9 or such other documentation or information prescribed by4478   applicable Laws or reasonably requested by the Borrower or the4479   Administrative Agent as will enable the Borrower or the Administrative4480   Agent, as the case may be, to determine whether or not such Lender is4481   subject to backup withholding or information reporting requirements.4482   (B) Each Foreign Lender to the extent that it is legally entitled4483   to do so shall deliver to the Borrower and the Administrative Agent (in4484   such number of copies as shall be requested by the recipient) on or prior to4485   the date on which such Foreign Lender becomes a Lender under this4486   Credit Agreement (and from time to time thereafter upon the request of the4487   Borrower or the Administrative Agent, but only if such Foreign Lender is4488   legally entitled to do so), whichever of the following is applicable:4489    





 







108   55802528_20   (1) executed originals of Internal Revenue Service4490   Form W-8 BEN or W-8 BEN-E, as applicable, claiming eligibility4491   for benefits of an income tax treaty to which the United States is a4492   party, with respect to (x) payments of interest under any Credit4493   Document pursuant to the “interest” article of such tax treaty, and4494   (y) any other applicable payments under any Credit Document4495   pursuant to the “business profits” or “other income” article of such4496   tax treaty,4497   (2) executed originals of Internal Revenue Service4498   Form W-8 ECI,4499   (3) to the extent a Foreign Lender is not the beneficial4500   owner, executed originals of Internal Revenue Service Form W-84501   IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or4502   W-8BEN-E, a certificate as required under Section4503   3.01(e)(ii)(B)(4), IRS Form W-8, and/or other certification4504   documents from each beneficial owner, as applicable; provided4505   that if the Foreign Lender is a partnership and one or more direct4506   or indirect partners of such Foreign Lender are claiming the4507   portfolio interest exemption, such Foreign Lender may provide a4508   certificate as required under Section 3.01(e)(ii)(B)(4) on behalf of4509   each such direct and indirect partner,4510   (4) in the case of a Foreign Lender claiming the4511   benefits of the exemption for portfolio interest under section4512   881(c) of the Internal Revenue Code, (x) a certificate to the effect4513   that such Foreign Lender is not (A) a “bank” within the meaning of4514   section 881(c)(3)(A) of the Internal Revenue Code, (B) a “104515   percent shareholder” of the Borrower within the meaning of4516   section 881(c)(3)(B) of the Internal Revenue Code, or (C) a4517   “controlled foreign corporation” described in section 881(c)(3)(C)4518   of the Internal Revenue Code and (y) executed originals of Internal4519   Revenue Service Form W-8 BEN or W-8 BEN-E, as applicable, or4520   (5) executed originals of any other form prescribed by4521   applicable Laws as a basis for claiming exemption from or a4522   reduction in United States federal withholding tax together with4523   such supplementary documentation as may be prescribed by4524   applicable Laws to permit the Borrower or the Administrative4525   Agent to determine the withholding or deduction required to be4526   made.4527   (C) If a payment made to a Lender under any Credit Document4528   would be subject to United States federal withholding Tax imposed by4529   FATCA if such Lender were to fail to comply with the applicable4530   reporting requirements of FATCA (including those contained in Section4531    





 







109   55802528_20   1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such4532   Lender shall deliver to the Administrative Agent and the Borrower at the4533   time or times prescribed by Law and at such time or times reasonably4534   requested by the Borrower or the Administrative Agent such4535   documentation prescribed by applicable Law (including as prescribed by4536   Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such4537   additional documentation reasonably requested by the Borrower or the4538   Administrative Agent as may be necessary for the Borrower and the4539   Administrative Agent to comply with their obligations under FATCA and4540   to determine that such Lender has complied with such Lender’s4541   obligations under FATCA or to determine the amount to deduct and4542   withhold from such payment. Solely for purposes of this clause (C),4543   “FATCA” shall include any amendments made to FATCA after the4544   Closing Date.4545   (iii) On or before the date the Administrative Agent becomes a party to4546   this Agreement, the Administrative Agent shall provide to the Borrower, two4547   duly-signed, properly completed copies of the IRS Form W-9 or any successor4548   thereto. At any time thereafter, the Administrative Agent shall provide updated4549   documentation previously provided or a successor form thereto) when any4550   documentation previously delivered has expired or become obsolete or invalid or4551   otherwise upon the reasonable request of the Borrower.4552   (iv) Each Lender agrees that if any form or certification it previously4553   delivered expires or becomes obsolete or inaccurate in any respect, it shall update4554   such form or certification, provide such successor form, or promptly notify the4555   Borrower and the Administrative Agent in writing of its legal inability to do so4556   (v) Each Lender shall promptly notify the Borrower and the4557   Administrative Agent of any change in circumstances that would modify or4558   render invalid any claimed exemption or reduction, and take such steps as shall4559   not be materially disadvantageous to it, in the reasonable judgment of such4560   Lender, and as may be reasonably necessary (including the re-designation of its4561   Lending Office) to avoid any requirement of applicable Laws of any jurisdiction4562   that the Borrower or the Administrative Agent make any withholding or4563   deduction for taxes from amounts payable to such Lender.4564   (vi) Each of the Credit Parties shall promptly deliver to the4565   Administrative Agent or any Lender, as the Administrative Agent or such Lender4566   shall reasonably request, on or prior to the Closing Date (or such later date on4567   which it first becomes a Credit Party), and in a timely fashion thereafter, such4568   documents and forms required by any relevant taxing authorities under the Laws4569   of any jurisdiction, duly executed and completed by such Credit Party, as are4570   required to be furnished by such Lender or the Administrative Agent under such4571   Laws in connection with any payment by the Administrative Agent or any Lender4572   of Taxes or Other Taxes, or otherwise in connection with the Credit Documents,4573   with respect to such jurisdiction.4574    





 







110   55802528_20   (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or4575   the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or4576   Other Taxes as to which it has been indemnified by any Credit Party or with respect to which any4577   Credit Party has paid additional amounts pursuant to this Section, it shall pay to such Credit4578   Party an amount equal to such refund (but only to the extent of indemnity payments made, or4579   additional amounts paid, by such Credit Party under this Section with respect to the Taxes or4580   Other Taxes giving rise to such refund), net of all out-of-pocket expenses and net of any loss or4581   gain realized in the conversion of such funds from or to another currency incurred by the4582   Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest4583   (other than any interest paid by the relevant Governmental Authority with respect to such4584   refund); provided that each Credit Party, upon the request of the Administrative Agent, such4585   Lender or the L/C Issuer, agrees to repay the amount paid over to such Credit Party (plus any4586   penalties, interest or other charges imposed by the relevant Governmental Authority) to the4587   Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such4588   Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This4589   subsection shall not be construed to require the Administrative Agent, any Lender or the L/C4590   Issuer to make available its tax returns (or any other information relating to its taxes that it deems4591   confidential) to the Credit Parties, any of their Subsidiaries or any other Person.4592   (g) Survival. Each party’s obligation under Section 3.01 shall survive the4593   resignation or replacement of the Administrative Agent or any assignment of rights by, or the4594   replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or4595   discharge of all obligations under any Credit Document.4596   Section 3.02. Illegality. If any Lender reasonably determines that any Law has made it4597   unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or4598   its applicable Lending Office to make, maintain or fund Loans whose interest is determined by4599   reference to the Eurocurrency Rate, or to determine or charge interest rates based upon the4600   Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the4601   authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London4602   interbank market, then, on notice thereof by such Lender to the Borrower through the4603   Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate4604   Loans or to convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended and if such4605   notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest4606   rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate,4607   the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such4608   illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate4609   component of the Base Rate, in each case until such Lender notifies the Administrative Agent4610   and the Borrower that the circumstances giving rise to such determination no longer exist. Upon4611   the Borrower’s receipt of such notice, (x) the Borrower shall, upon demand from such Lender4612   (with a copy to the Administrative Agent), prepay or, if applicable, convert all of such Lender’s4613   Eurocurrency Rate Loans to Base Rate Loans (the interest rate on which Base Rate Loans of4614   such Lender shall, if necessary to avoid such illegality, be determined by the Administrative4615   Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last4616   day of the Interest Period therefor, if such Lender may lawfully continue to maintain such4617   Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue4618   to maintain such Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such4619    





 







111   55802528_20   Lender determining or charging interest rates based upon the Eurocurrency Rate component of4620   the Base Rate with respect to any Base Rate Loans, the Administrative Agent shall during the4621   period of such suspension compute the Base Rate applicable to such Lender without reference to4622   the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by4623   such Lender that it is no longer illegal for such Lender to determine or charge interest rates based4624   upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrower shall also4625   pay accrued interest on the amount so prepaid or converted.4626   Section 3.03. Inability to Determine Rates. If (x) the Administrative Agent reasonably4627   determines that for any reason in connection with any request for a Eurocurrency Rate Loan or a4628   conversion to or continuation thereof that Dollar deposits are not being offered to banks in the4629   London interbank market, the applicable amount or the applicable Interest Period for such4630   Eurocurrency Rate Loan, adequate and reasonable means do not exist for determining the4631   Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency4632   Rate Loan, or (y) the Required Lenders notify the Administrative Agent that the Eurocurrency4633   Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or in4634   connection with an existing or proposed Base Rate Loan which is based on the Eurocurrency4635   Rate, does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the4636   Administrative Agent will promptly notify the Borrower and Lenders. Thereafter, (x) the4637   obligation of the Lenders to make or maintain such Eurocurrency Rate Loans shall be suspended4638   and (y) in the event of a determination described in the preceding sentence with respect to the4639   Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate4640   component in determining the Base Rate shall be suspended, in each case until the4641   Administrative Agent (upon the instruction of the Required Lenders in the case of clause (y) of4642   the previous sentence) revokes such notice. Upon receipt of such notice, the Borrower may4643   revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency4644   Rate Loans or, failing that, will be deemed to have converted such request into a request for a4645   Borrowing of Base Rate Loans or conforming Eurocurrency Rate Loans, as appropriate, in the4646   amount specified therein.4647   Section 3.04. Increased Cost; Capital Adequacy.4648   (a) Increased Costs Generally. If any Change in Law shall:4649   (i) impose, modify or deem applicable any reserve, special deposit,4650   compulsory loan, insurance charge or similar requirement against assets of,4651   deposits with or for the account of, or credit extended or participated in by, any4652   Lender (except any reserve requirement reflected in the Eurocurrency Rate or4653   contemplated by Section 3.04(e) hereof) or the L/C Issuer;4654   (ii) subject any Lender or the L/C Issuer to any tax of any kind4655   whatsoever with respect to this Credit Agreement, any Letter of Credit, any4656   participation in a Letter of Credit or any Eurocurrency Rate Loan made by it, or4657   change the basis of taxation of payments to such Lender or the L/C Issuer in4658   respect thereof (except for (A) Indemnified Taxes or Other Taxes covered by4659   Section 3.01(a) and Section 3.01(b), (B) the imposition of, or any change in the4660   rate of, any Taxes described in clauses (c) through (f) of the definition of4661    





 







112   55802528_20   Excluded Tax and (C) Connection Income Taxes) payable by such Lender or the4662   L/C Issuer; or4663   (iii) impose on any Lender or the L/C Issuer or the London interbank4664   market any other condition, cost or expense affecting this Credit Agreement or4665   Eurocurrency Rate Loans made by such Lender or any Letter of Credit or4666   participation therein;4667   and the result of any of the foregoing shall be to increase the cost to such Lender of making or4668   maintaining any Eurocurrency Rate Loan, the interest on which is determined by reference to the4669   Eurocurrency Rate (or of maintaining its obligation to make any such Loan), or to increase the4670   cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of4671   Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to4672   reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder4673   (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C4674   Issuer, the Borrower will pay, or cause to be paid, to such Lender or the L/C Issuer, as the case4675   may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as4676   the case may be, for such additional costs incurred or reduction suffered.4677   (b) Capital Requirements. If any Lender or the L/C Issuer reasonably4678   determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending4679   Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding4680   capital or liquidity requirements has or would have the effect of reducing the rate of return on4681   such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s4682   holding company, if any, as a consequence of this Credit Agreement, the Commitments of such4683   Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the4684   Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C4685   Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such4686   Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the4687   policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy4688   and liquidity), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as4689   the case may be, such additional amount or amounts as will compensate such Lender or L/C4690   Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.4691   (c) Certificates for Reimbursement. A certificate of a Lender or the L/C4692   Issuer setting forth in reasonable detail the amount or amounts necessary to compensate such4693   Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection4694   (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.4695   The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as4696   due on any such certificate within 10 days after receipt thereof.4697   (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C4698   Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not4699   constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation;4700   provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer4701   pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions4702   suffered more than six months prior to the date that such Lender or the L/C Issuer, as the case4703    





 







113   55802528_20   may be, notifies the Borrower of the Change in Law giving rise to such increased costs or4704   reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor4705   (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive,4706   then the six-month period referred to above shall be extended to include the period of retroactive4707   effect thereof).4708   (e) Reserves on Eurocurrency Rate Loans. Without duplication of amounts4709   paid pursuant to the definition of “Eurocurrency Rate,” the Borrower shall pay, or cause to be4710   paid, to each Lender, as long as such Lender shall be required to comply with any reserve ratio4711   requirement or analogous requirement of any central banking or financial regulatory authority4712   imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency4713   Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if4714   necessary, to the nearest five decimal places) equal to the actual costs allocated to such4715   Commitment or Loan by such Lender (as determined by such Lender in good faith, which4716   determination shall be conclusive absent manifest error), which shall be due and payable on each4717   date on which interest is payable on such Loan; provided the Borrower shall have received at4718   least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest4719   or costs from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest4720   Payment Date, such additional interest or costs shall be due and payable 10 days from receipt of4721   such notice.4722   Section 3.05. Compensation for Losses. Upon written demand of any Lender (with a4723   copy to the Administrative Agent) from time to time, which demand shall set forth in reasonable4724   detail the basis for requesting such compensation, the Borrower shall promptly compensate, or4725   cause to be compensated, such Lender for and hold such Lender harmless from any loss, cost or4726   expense incurred by it as a result of:4727   (a) any continuation, conversion, payment or prepayment of any4728   Eurocurrency Rate Loan on a day other than the last day of the Interest Period for such Loan4729   (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);4730   (b) any failure by the Borrower (for a reason other than the failure of such4731   Lender to make a Loan) to prepay, borrow, continue or convert any Eurocurrency Rate Loan on4732   the date or in the amount notified by the Borrower; or4733   (c) any assignment of a Eurocurrency Rate Loan on a day other than the last4734   day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section4735   11.13;4736   including any loss or expense (excluding loss of anticipated profits, any foreign exchange losses4737   or margin) arising from the liquidation or redeployment of funds obtained by it to maintain such4738   Loan or from fees payable to terminate the deposits from which such funds were obtained or4739   from the performance of any foreign exchange contract. The Borrower shall also pay, or cause4740   to be paid, any customary administrative fees charged by such Lender in connection with the4741   foregoing. A certificate of a Lender setting forth in reasonable detail the amount or amounts4742   necessary to compensate such Lender as specified in this Section and delivered to the Borrower4743   shall be conclusive absent manifest error.4744    





 







114   55802528_20   Section 3.06. Mitigation Obligations; Replacement of Lenders.4745   (a) Designation of a Different Lending Office. If any Lender requests4746   compensation under Section 3.04, or the Borrower is required to pay any additional amount to4747   any Lender (including the L/C Issuer) or any Governmental Authority for the account of any4748   Lender pursuant to Section 3.01, or if any Lender (including the L/C Issuer) gives a notice4749   pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different4750   Lending Office for funding or booking its Loans hereunder or issuing or participating in Letters4751   of Credit hereunder or to assign its rights and obligations hereunder to another of its offices,4752   branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)4753   would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be,4754   in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii)4755   in each case, would not subject such Lender to any material unreimbursed cost or expense and4756   would not otherwise be materially disadvantageous to such Lender in any material economic,4757   legal or regulatory respect; provided that nothing in this Section 3.06(a) shall affect or postpone4758   any Obligations of the Borrower or the rights of the Lenders under this Article 3. The Borrower4759   hereby agrees to pay, or cause to be paid, all reasonable costs and expenses incurred by any4760   Lender in connection with any such designation or assignment.4761   (b) If any Lender requests compensation by the Borrower under Section 3.04,4762   the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend4763   the obligation of such Lender to make or continue Eurocurrency Rate Loans from one Interest4764   Period to another Interest Period, or to convert Base Rate Loans into Eurocurrency Rate Loans,4765   until the event or condition giving rise to such request ceases to be in effect (in which case the4766   provisions of Section 3.06(d) shall be applicable); provided that such suspension shall not affect4767   the right of such Lender to receive the compensation so requested.4768   (c) If the obligation of any Lender to make or continue any Eurocurrency Rate4769   Loan or to convert Base Rate Loans into Eurocurrency Rate Loans shall be suspended pursuant4770   to Section 3.06(b) hereof, such Lender’s applicable Eurocurrency Rate Loans shall be4771   automatically converted into Base Rate Loans on the last day(s) of the then current Interest4772   Period(s) for such Eurocurrency Rate Loans (or, in the case of any immediate conversion4773   required by Section 3.02, on such earlier date as required by Law) and, unless and until such4774   Lender gives notice as provided below that the circumstances specified in Section 3.02, 3.03 or4775   3.04 hereof that gave rise to such conversion no longer exist:4776   (i) to the extent that such Lender’s Eurocurrency Rate Loans have4777   been so converted, all payments and prepayments of principal that would4778   otherwise be applied to such Lender’s applicable Eurocurrency Rate Loans shall4779   be applied instead to its Base Rate Loans; and4780   (ii) all Loans that would otherwise be made or continued from one4781   Interest Period to another by such Lender as Eurocurrency Rate Loans shall be4782   made or continued instead as Base Rate Loans (if possible), and all Base Rate4783   Loans of such Lender that would otherwise be converted into Eurocurrency Rate4784   Loans shall remain as Base Rate Loans.4785    





 







115   55802528_20   (d) If any Lender gives notice to a Borrower (with a copy to the4786   Administrative Agent) that the circumstances specified in Section 3.01, Section 3.02,4787   Section 3.03 or Section 3.04 hereof that gave rise to the conversion of such Lender’s4788   Eurocurrency Rate Loans pursuant to this Section 3.06 no long exist (which such Lender agrees4789   to do promptly upon such circumstances ceasing to exist) at a time when Eurocurrency Rate4790   Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be4791   automatically converted irrespective of whether such conversion results in greater than ten4792   Interest Periods (as adjusted pursuant to Section 2.02(f)) being outstanding under this4793   Agreement, on the first day(s) of the next succeeding Interest Period(s) for such outstanding4794   Eurocurrency Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans4795   held by the Lenders holding Eurocurrency Rate Loans and by such Lender are held pro rata (as4796   to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective4797   Commitments.4798   (e) Replacement of Lenders. If any Lender requests compensation under4799   Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any4800   Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender4801   gives notice pursuant to Section 3.02, or if any Lender is then a Defaulting Lender, the Borrower4802   may replace such Lender in accordance with Section 11.13.4803   Section 3.07. Survival Losses. All of the Borrower’s obligations under this Article 34804   shall survive termination of the Commitments hereunder and repayment of the Obligations.4805   ARTICLE 44806   GUARANTY4807   Section 4.01. The Guaranty.4808   (a) Each of the Guarantors hereby jointly and severally guarantees to the4809   Administrative Agent and each of the holders of the Obligations as hereinafter provided, as4810   primary obligor and not as surety, the prompt payment of the Obligations in full when due4811   (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash4812   collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors4813   hereby further agree that if any of the Obligations are not paid in full when due (whether at stated4814   maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or4815   otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any4816   demand or notice whatsoever, and that in the case of any extension of time of payment or4817   renewal of any of the Obligations, the same will be promptly paid in full when due (whether at4818   extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash4819   collateralization or otherwise) in accordance with the terms of such extension or renewal.4820   (b) Notwithstanding any provision to the contrary contained herein or in any4821   other of the Credit Documents or Swap Contracts, the obligations of each Guarantor (in its4822   capacity as such) under this Credit Agreement and the other Credit Documents and Swap4823   Contracts shall be limited to an aggregate amount equal to the largest amount that would not4824   render such obligations subject to avoidance under the Debtor Relief Laws or any comparable4825   provisions of any applicable Law.4826    





 







116   55802528_20   Section 4.02. Obligations Unconditional.4827   (a) The obligations of the Guarantors under Section 4.01 are joint and several,4828   absolute and unconditional, irrespective of the value, genuineness, validity, regularity or4829   enforceability of any of the Credit Documents or other documents relating to the Obligations, or4830   any substitution, compromise, release, impairment or exchange of any other guarantee of or4831   security for any of the Obligations, and, to the fullest extent permitted by applicable Law,4832   irrespective of any other circumstance whatsoever that might otherwise constitute a legal or4833   equitable discharge or defense of a surety or guarantor (other than payment or performance), it4834   being the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be4835   absolute and unconditional under any and all circumstances. Each Guarantor agrees that such4836   Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against4837   any other Guarantor for amounts paid under this Article 4 until such time as the Obligations have4838   been paid in full and the commitments relating thereto have expired or terminated.4839   (b) It is agreed that, to the fullest extent permitted by Law, the occurrence of4840   any one or more of the following shall not alter or impair the liability of any Guarantor4841   hereunder, which shall remain absolute and unconditional as described above:4842   (i) at any time or from time to time, without notice to any Guarantor,4843   the time for any performance of or compliance with any of the Obligations shall4844   be extended, or such performance or compliance shall be waived; or4845   (ii) any of the acts mentioned in any of the provisions of any of the4846   Credit Documents, or other documents relating to the obligations or any other4847   agreement or instrument referred to therein shall be done or omitted.4848   (c) With respect to its obligations hereunder, each Guarantor hereby expressly4849   waives diligence, presentment, demand of payment, protest, notice of acceptance of the guaranty4850   given hereby and of extensions of credit that may constitute obligations guaranteed hereby,4851   notices of amendments, waivers, consents and supplements to the Credit Documents and other4852   documents relating to the Obligations, or the compromise, release or exchange of collateral or4853   security, and all other notices whatsoever, and any requirement that the Administrative Agent or4854   any holder of the Obligations exhaust any right, power or remedy or proceed against any Person4855   under any of the Credit Documents or any other documents relating to the Obligations or any4856   other agreement or instrument referred to therein, or against any other Person under any other4857   guarantee of, or security for, any of the Obligations.4858   Section 4.03. Reinstatement. Neither the Guarantors’ obligations hereunder nor any4859   remedy for the enforcement thereof shall be impaired, modified, changed or released in any4860   manner whatsoever by an impairment, modification, change, release or limitation of the liability4861   of the Borrower, by reason of the Borrower’s bankruptcy or insolvency or by reason of the4862   invalidity or unenforceability of all or any portion of the Obligations. In addition, the obligations4863   of each Guarantor under this Article 4 shall be automatically reinstated if and to the extent that4864   for any reason any payment by or on behalf of any Person in respect of the Obligations is4865   rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a4866   result of any Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify4867    





 







117   55802528_20   the Administrative Agent and each holder of the Obligations on demand for all reasonable and4868   documented costs and expenses (including reasonable and documented attorneys’ fees and4869   disbursements) incurred by the Administrative Agent or such holder of the Obligations in4870   connection with such rescission or restoration, including any such costs and expenses incurred in4871   defending against any claim alleging that such payment constituted a preference, fraudulent4872   transfer or similar payment under any Debtor Relief Law.4873   Section 4.04. Certain Waivers. Each Guarantor acknowledges and agrees that the4874   guaranty given hereby may be enforced without the necessity of resorting to or otherwise4875   exhausting remedies in respect of any other security or collateral interests, and without the4876   necessity at any time of having to take recourse against the Borrower or any other Person or4877   against any collateral securing the Obligations or otherwise, and it will not assert any right to4878   require that action first be taken against the Borrower or any other Person (including any co-4879   guarantor) or pursuit of any other remedy or enforcement of any other right, and nothing4880   contained herein shall prevent or limit action being taken against the Borrower hereunder, under4881   the other Credit Documents or the other documents and agreements relating to the Obligations or4882   from foreclosing on any security or collateral interests relating hereto or thereto, or from4883   exercising any other rights or remedies available in respect thereof, if the Guarantors shall not4884   timely perform their obligations, and the exercise of any such rights and completion of any such4885   foreclosure proceedings shall not constitute a discharge of the Guarantors’ obligations hereunder4886   unless as a result thereof, the Obligations shall have been paid in full and the commitments4887   relating thereto shall have expired or terminated, it being the purpose and intent that the4888   Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional.4889   Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the4890   Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02(a) and4891   through the exercise of rights of contribution pursuant to Section 4.06.4892   Section 4.05. Remedies. The Guarantors agree that, to the fullest extent permitted by4893   Law, as between the Guarantors, on the one hand, and holders of the Obligations, on the other4894   hand, the Obligations may be declared to be forthwith due and payable as provided in Section4895   9.02 (and shall be deemed to have become automatically due and payable in the circumstances4896   specified in Section 9.02)) for purposes of Section 4.01. notwithstanding any stay, injunction or4897   other prohibition preventing such declaration (or preventing the Obligations from becoming4898   automatically due and payable) as against any other Person and that, in the event of such4899   declaration (or the Obligations being deemed to have become automatically due and payable),4900   the Obligations (whether or not due and payable by any other Person) shall forthwith become4901   due and payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge4902   and agree that their obligations hereunder are secured in accordance with the terms of the4903   Collateral Documents and that the holders of the Obligations may exercise their remedies4904   thereunder in accordance with the terms thereof.4905   Section 4.06. Rights of Contribution. The Guarantors hereby agree as among4906   themselves that, in connection with payments made hereunder, each Guarantor shall have a right4907   of contribution from each other Guarantor in accordance with applicable Law. Such contribution4908   rights shall be subordinate and subject in right of payment to the Obligations until such time as4909   the Obligations have been irrevocably paid in full and the commitments relating thereto shall4910   have expired or been terminated, and none of the Guarantors shall exercise any such contribution4911    





 







118   55802528_20   rights until the Obligations have been irrevocably paid in full and the commitments relating4912   thereto shall have expired or been terminated.4913   Section 4.07. Guaranty of Payment; Continuing Guarantee. The guarantee given by the4914   Guarantors in this Article 4 is a guaranty of payment and not of collection, is a continuing4915   guaranty, and shall apply to all Obligations whenever arising.4916   Section 4.08. Keepwell. Each Qualified ECP Guarantor hereby jointly and severally4917   absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as4918   may be needed from time to time by each other Guarantor to honor all of its obligations under4919   the guaranty given hereby in respect of the Swap Obligations; provided, however, that each4920   Qualified ECP Guarantor shall only be liable under this Section 4.08 for the maximum amount of4921   such liability that can be hereby incurred without rendering its obligations under this Section4922   4.08, or otherwise under the guaranty given hereby, voidable under applicable Law relating to4923   fraudulent conveyance or fraudulent transfer, and not for any greater amount. The obligations of4924   each Qualified ECP Guarantor under this Section 4.08 shall remain in full force and effect until4925   the termination of the Commitments and the repayment, satisfaction or discharge of all other4926   Obligations (other than (i) contingent indemnification obligations as to which no claim has been4927   asserted, (ii) Obligations described in clauses (b) and (c) of the definition thereof and (iii) any4928   Letter of Credit that has been Cash Collateralized or back-stopped by a letter of credit reasonably4929   satisfactory to the L/C Issuer or such Letter of Credit has been deemed reissued under another4930   agreement reasonably acceptable to the L/C Issuer). Each Qualified ECP Guarantor intends that4931   this Section 4.08 constitute, and this Section 4.08 shall be deemed to constitute, a “keepwell,4932   support, or other agreement” for the benefit of each other Guarantor for all purposes of Section4933   1a(18)(A)(v)(II) of the Commodity Exchange Act.4934   Section 4.09. Release of Guarantors. If, in compliance with the terms and provisions of4935   the Credit Documents, any Guarantor ceases to be a Restricted Subsidiary or becomes an4936   Excluded Subsidiary as a result of a transaction or designation permitted hereunder (any such4937   Guarantor, a “Transferred Guarantor”), such Transferred Guarantor shall be automatically4938   released from its obligations under this Agreement (including under Section 11.04 hereof) and its4939   obligations to pledge and grant any Collateral owned by it pursuant to any Collateral Document4940   and, so long as the Borrower shall have provided the Administrative Agent and Collateral Agent4941   such certifications or documents as any such Agent shall reasonably request, the Administrative4942   Agent and Collateral Agent shall take such actions as are necessary to effect each release4943   described in this Section 4.09 in accordance with the relevant provisions of the Collateral4944   Documents; provided, however, that the release of any Subsidiary Guarantor from its obligations4945   under this Agreement if such Subsidiary Guarantor becomes an Excluded Subsidiary shall only4946   be permitted if at the time such Subsidiary Guarantor becomes an Excluded Subsidiary of such4947   type (1) after giving pro forma effect to such release and the consummation of the transaction4948   that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to4949   have made a new Investment in such Person (as if such Person were then newly acquired) and4950   such Investment is permitted at such time and (2) a Responsible Officer of the Borrower certifies4951   to the Administrative Agent compliance with the preceding clause (1); provided, further, that no4952   such release shall occur if such Subsidiary Guarantor continues to be a guarantor in respect of4953   any Incremental Equivalent Debt, any Refinancing Equivalent Debt or any Permitted4954   Refinancing in respect of any of the foregoing.4955    





 







119   55802528_20   ARTICLE 54956   CONDITIONS PRECEDENT TO CREDIT EXTENSIONS4957   Section 5.01. Conditions to the Closing Date. The obligation of the L/C Issuer and each4958   Lender to make the initial Credit Extensions on the Closing Date shall, in each case, be subject to4959   satisfaction (or waiver in accordance with Section 11.01) of the following conditions:4960   (a) Credit Documents. Receipt by the Administrative Agent of executed4961   counterparts of the following documents, in each case, executed by the Credit Parties party4962   thereto:4963   1. this Credit Agreement;4964   2. the Security Agreement;4965   3. the Perfection Certificate;4966   4. the Intellectual Property Security Agreements for filing in the United4967   States Patent and Trademark Office and the United States Copyright Office;4968   5. Notes, if requested by a Lender at least three (3) Business Days in advance4969   of the Closing Date; and4970   6. a Loan Notice.4971   (b) Opinions of Counsel. Receipt by the Administrative Agent, on behalf of4972   itself and the Lenders, of customary opinions of legal counsel from (i) Ropes & Gray LLP, New4973   York Counsel to the Credit Parties and (ii) Knightlinger & Gray, LLP, Indiana counsel to4974   Microsemi Corp. – Memory and Storage Solutions.4975   (c) Organization Documents, Resolutions, Etc. Receipt by the Administrative4976   Agent of the following:4977   (i) with respect to each Credit Party, copies of the Organization4978   Documents of such Credit Party certified to be true and complete as of a recent4979   date by the appropriate Governmental Authority of the state or other jurisdiction4980   of its incorporation or organization, where applicable, and certified by a4981   Responsible Officer of such Credit Party to be true and correct as of the Closing4982   Date;4983   (ii) with respect to each Credit Party, such certificates of resolutions or4984   other action, incumbency certificates and/or other certificates of Responsible4985   Officers of such Credit Party as the Administrative Agent may reasonably require4986   evidencing the identity, authority and capacity of each Responsible Officer4987   thereof authorized to act as a Responsible Officer in connection with this Credit4988   Agreement and the other Credit Documents to which such Credit Party is a party;4989   and4990    





 







120   55802528_20   (iii) good standing certificates for each Credit Party as of recent date in4991   its state of organization or formation.4992   (d) Personal Property Collateral. Receipt by the Administrative Agent of (i)4993   all certificates evidencing any certificated Capital Stock or equity interests of the Borrower’s4994   direct or indirect Subsidiaries pledged pursuant to the Security Agreement, together with undated4995   stock powers duly executed in blank attached thereto, and (ii) evidence that all other actions,4996   recordings and filings required by the Collateral Documents (other than the filing or recording of4997   any Mortgages) that the Administrative Agent may deem reasonably necessary to satisfy the4998   Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided4999   for in a manner reasonably satisfactory to the Administrative Agent; provided, however, that, to5000   the extent any of the requirements set forth in clauses (i) and (ii) of this clause (d), including the5001   delivery of documents and instruments necessary to satisfy the Collateral and Guarantee5002   Requirement, including the Mortgages, Mortgage Policies and related real estate deliverables5003   cannot be provided or perfected after the Borrower’s use of commercially reasonable efforts to5004   do so without undue burden or expense (except for the execution and delivery of the Security5005   Agreement and perfection of security interests created thereunder to the extent that a Lien on the5006   Collateral may be perfected (x) by the filing of a financing statement under the Uniform5007   Commercial Code or (y) by the delivery of stock certificates of the Borrower and the Material5008   Domestic Subsidiaries that are Wholly-Owned with respect to which a Lien may be perfected5009   upon closing by the delivery of a stock certificate), then such requirement shall not constitute5010   conditions precedent to any Credit Extension on the Closing Date but the Borrower agrees to5011   deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken5012   such other actions as may be required to perfect such security interests within the time periods5013   set forth on Schedule 7.15 (subject, in either case, to extensions approved by the Administrative5014   Agent in its reasonable discretion).5015   (e) Closing Certificate. Receipt by the Administrative Agent of a certificate5016   signed by a Responsible Officer of the Borrower as of the Closing Date certifying that the5017   conditions specified in subsections (g), (h) and (i) of this Section 5.01 have been satisfied as of5018   the Closing Date.5019   (f) Fees. Payment of all fees and expenses required to be paid on the Closing5020   Date (including fees pursuant to the Fee Letter), including the reasonable and documented out-5021   of-pocket fees and expenses of counsel for the Administrative Agent and the Arrangers that, in5022   the case of such expenses, have been invoiced at least three Business Days prior to the Closing5023   Date (except as otherwise reasonably agreed by the Borrower).5024   (g) Consummation of Microsemi Acquisition. The Microsemi Acquisition5025   shall have been, or shall substantially concurrently with such initial Credit Extension on the5026   Closing Date be, consummated in accordance with the terms of the Acquisition Agreement. The5027   Acquisition Agreement shall not have been amended or waived, and no consents shall have been5028   given with respect thereto, in each case, in any material respect by the Borrower and its5029   Subsidiaries in a manner materially adverse to the Lenders or the Arrangers (in each case, in5030   their capacity as such) without the consent of the Arrangers provided that (a) any amendment,5031   waiver or consent that results in a change in the amount of consideration required to consummate5032   the Microsemi Acquisition shall be deemed not to be materially adverse to the Lenders or the5033    





 







121   55802528_20   Arrangers so long as (i) subject to clause (d) below, any reduction shall be applied to reduce the5034   Term Loan Facility, the use of cash from the Borrower’s balance sheet and the proceeds from5035   any common equity issuance (if any) on a pro rata basis and (ii) any increase is funded by cash5036   on the Borrower’s balance sheet or the proceeds of common equity of the Borrower, (b) the5037   granting of any consent under the Acquisition Agreement that is not materially adverse to the5038   interests of the Lenders or the Arrangers shall not otherwise constitute an amendment or waiver,5039   (c) any change to the definition of “Material Adverse Effect” in the Acquisition Agreement shall5040   be deemed materially adverse to the Lenders and the Arrangers and (d) any reduction in the5041   purchase price of the Acquisition in excess of 10% shall be deemed materially adverse to the5042   Lenders and the Arrangers.5043   (h) Accuracy of Representations and Warranties.5044   (i) The Specified Representations shall be true and correct in all5045   material respects (except for representations and warranties that are already5046   qualified by materiality, which representations and warranties shall be true and5047   correct after giving effect to such materiality qualifier); and5048   (ii) the Acquisition Agreement Representations shall be true and5049   correct in all material respects but only to the extent that the Borrower has the5050   right (taking into account any applicable cure provisions), pursuant to the5051   Acquisition Agreement, to terminate its obligations under the Acquisition5052   Agreement to consummate the Microsemi Acquisition (or the right not to5053   consummate the Microsemi Acquisition pursuant to the Acquisition Agreement)5054   as a result of a breach of such representations and warranties.5055   (i) No Target Material Adverse Effect. Since March 23, 2016, except as set5056   forth in the disclosure schedules to the Acquisition Agreement, there shall not have been a Target5057   Material Adverse Effect or the occurrence of any change, effect, event, occurrence, state of facts5058   or development, which would, individually or in the aggregate, be reasonably likely to have a5059   Target Material Adverse Effect.5060   (j) Solvency Certificate. Receipt by the Administrative Agent of the5061   Solvency Certificate.5062   (k) Financial Statements. Receipt by the Administrative Agent of (i) the5063   Historical Financial Statements and (ii) the Pro Forma Financial Statements.5064   (l) Refinancing. Receipt by the Administrative Agent of reasonably5065   satisfactory evidence that (A) all indebtedness under that certain Credit Agreement, dated as of5066   October 12, 2012, by and among the Borrower, KeyBank National Association, as administrative5067   agent, and the lenders and other parties thereto (as amended, restated, supplemented or otherwise5068   modified through the Closing Date) has been paid in full, and all commitments and guaranties in5069   connection therewith have been terminated and released and (B) the guarantees of the Target5070   and/or its Subsidiaries, and any security interests granted in the Target, its Subsidiaries and their5071   assets have been terminated and released under (I) that certain Guarantee and Collateral5072   Agreement, dated as of January 15, 2016, by and among Microsemi Corporation, the other5073    





 







122   55802528_20   Grantors (as defined therein) party thereto and Morgan Stanley Senior Funding, Inc. and (II) that5074   certain Indenture, dated as of January 15, 2016, by and among Microsemi Corporation, the5075   guarantors named therein and U.S. Bank National Association (collectively, the “Refinancing”).5076   (m) Patriot Act. Receipt by the Administrative Agent, at least three (3)5077   Business Days prior to the Closing Date, of all documentation and other information relating to5078   the Borrower and the other Credit Parties that are required by regulatory authorities under5079   applicable “know-your-customer” rules and regulations, including the Act, to the extent5080   requested by the Administrative Agent in writing from the Borrower at least ten (10) Business5081   Days prior to the Closing Date.5082   Without limiting the generality of the provisions of Section 10.04, for purposes of5083   determining compliance with the conditions specified in this Section 5.01, each Lender that has5084   signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to5085   be satisfied with, each document or other matter required thereunder to be consented to or5086   approved by or reasonable acceptable or satisfactory to a Lender unless the Administrative Agent5087   shall have received notice from such Lender prior to the proposed Closing Date specifying its5088   objection thereto.5089   Section 5.02. Conditions to all Credit Extensions after the Closing Date. The obligation5090   of each Lender to honor any Request for Credit Extension after the Closing Date is subject to the5091   satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent:5092   (a) The representations and warranties of the Borrower and each other Credit5093   Party contained in Article 6 or any other Credit Document shall be true and correct in all material5094   respects on and as of the date of such Credit Extension, except to the extent that such5095   representations and warranties specifically refer to an earlier date, in which case they shall be5096   true and correct in all material respects as of such earlier date; provided, however, that any5097   representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or5098   similar language shall be true and correct (after giving effect to any qualification therein) in all5099   respects on such respective dates, and except that for purposes of this Section 5.02, the5100   representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be5101   deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),5102   respectively, of Section 7.01.5103   (b) Other than in connection with the initial Credit Extensions on the Closing5104   Date, no Default or Event of Default shall exist immediately before or immediately after giving5105   effect to such Credit Extension.5106   (c) The Administrative Agent, the L/C Issuer and/or the Swingline Lender5107   shall have received a Request for Credit Extension in accordance with the requirements hereof.5108   Each Request for Credit Extension (other than a Loan Notice requesting only a5109   conversion of Loans to other Types of Loans, or a continuation of Eurocurrency Rate Loans)5110   submitted by the Borrower shall be deemed to be a representation and warranty by the Borrower5111   that the conditions specified in Section 5.02(a) and (b) have been satisfied (to the extent such5112    





 







123   55802528_20   conditions are required to be satisfied with respect to such Credit Extension) on and as of the5113   date of the applicable Credit Extension.5114   ARTICLE 65115   REPRESENTATIONS AND WARRANTIES5116   Each of the Credit Parties represent and warrant to the Administrative Agent and the5117   Lenders, as of the Closing Date and each other date on which such representations and5118   warranties are required to be true and correct pursuant to Section 5.02 or otherwise, that:5119   Section 6.01. Existence, Qualification and Power. Each Credit Party (a) is duly5120   organized or formed, validly existing and in good standing under the Laws of the jurisdiction of5121   its incorporation or organization; (b) has all requisite power and authority and all requisite5122   governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and5123   carry on its business and (ii) execute, deliver and perform its obligations under the Credit5124   Documents to which it is a party; and (c) is duly qualified and is licensed and in good standing5125   (to the extent such concept exists in such jurisdiction) under the Laws of each jurisdiction where5126   its ownership, lease or operation of properties or the conduct of its business requires such5127   qualification or license; except, in each case referred to in clause (a) (other than with respect to5128   the Borrower), (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to5129   have a Material Adverse Effect.5130   Section 6.02. Authorization; No Contravention. The execution, delivery and5131   performance by each Credit Party of each Credit Document to which it is party, (a) have been5132   duly authorized by all necessary corporate or other organizational action, (b) do not and will not5133   contravene the terms of any of such Person’s Organization Documents; and (c) do not and will5134   not conflict with or result in any breach or contravention of, or the creation of any Lien under5135   (other than as permitted by Section 8.01), or require any payment to be made under any5136   Contractual Obligation to which such Person is a party or affecting such Person or the properties5137   of such Person or any of its Restricted Subsidiaries or any order, injunction, writ or decree of any5138   Governmental Authority or any arbitral award to which such Person or its property is subject; or5139   violate any Law applicable to such Person; except with respect to any contravention, conflict or5140   violation referred to in clause (c), to the extent that such contravention, conflict or violation5141   could not reasonably be expected to have a Material Adverse Effect.5142   Section 6.03. Governmental Authorization; Other Consents. No approval, consent,5143   exemption, authorization, or other action by, or notice to, or filing with, any Governmental5144   Authority or any other Person is necessary or required in connection with the execution, delivery5145   or performance by, or enforcement against, any Credit Party of this Credit Agreement or any5146   other Credit Document (other than as have already been obtained and are in full force and effect,5147   filings to perfect security interests granted pursuant to the Credit Documents (except to the extent5148   not required to be obtained, taken, given or made or in full force and effect pursuant to the5149   Collateral and Guarantee Requirement) and those approvals, consents, exemptions,5150   authorizations or other actions, notices or filings, the failure of which to obtain or make could not5151   reasonably be expected to have a Material Adverse Effect).5152    





 







124   55802528_20   Section 6.04. Binding Effect. This Credit Agreement has been, and each other Credit5153   Document, when delivered hereunder, will have been, duly executed and delivered by each5154   Credit Party that is party thereto. This Credit Agreement constitutes, and each other Credit5155   Document when so delivered will constitute, a legal, valid and binding obligation of such Credit5156   Party, enforceable against each Credit Party that is party thereto in accordance with its terms,5157   except (a) to the extent the enforceability thereof may be limited by applicable Debtor Relief5158   Laws affecting creditors’ rights generally and by equitable principles of law (regardless of5159   whether enforcement is sought in equity or at law) and (b) for any filing necessary to perfect5160   security interests granted pursuant to the Credit Documents.5161   Section 6.05. Financial Statements.5162   (a) The Annual Financial Statements fairly present in all material respects the5163   financial condition of the Borrower and its Subsidiaries or the Target and its Subsidiaries, as5164   applicable, as of the date thereof and their results of operations for the period covered thereby in5165   accordance with GAAP consistently applied throughout the period covered thereby, except as5166   otherwise expressly noted therein.5167   (b) The Quarterly Financial Statements fairly present in all material respects5168   the financial condition of the Borrower and its Subsidiaries or the Target and its Subsidiaries, as5169   applicable, as of the date thereof and their results of operations for the period covered thereby, in5170   accordance with GAAP consistently applied throughout the period covered thereby, except as5171   otherwise expressly noted therein and subject to the absence of footnotes and to normal year-end5172   audit adjustments.5173   Section 6.06. No Material Adverse Effect. Since the Closing Date, there has been no5174   event or circumstance, either individually or in the aggregate, that has had or could reasonably be5175   expected to have a Material Adverse Effect.5176   Section 6.07. Litigation. There are no actions, suits, investigations, criminal5177   prosecutions, civil investigative demands, imposition of criminal or civil fines or penalties,5178   proceedings, claims or disputes pending or, to the knowledge of the Borrower, overtly threatened5179   or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or5180   against the Borrower or any Restricted Subsidiary or against any of their properties or revenues5181   that either individually or in the aggregate could reasonably be expected to have a Material5182   Adverse Effect.5183   Section 6.08. Labor Matters. Except as, individually or in the aggregate, could not5184   reasonably be expected to have a Material Adverse Effect, there are no strikes or other labor5185   disputes against the Borrower or any of its Restricted Subsidiaries pending or, to the knowledge5186   of the Borrower, threatened.5187   Section 6.09. Ownership of Property; Liens. The Borrower and its Restricted5188   Subsidiaries have good record and marketable title in fee simple to, or valid leasehold interests5189   in, all real property necessary or used in the ordinary conduct of its business, except for such5190   defects in title as could not, individually or in the aggregate, reasonably be expected to have a5191    





 







125   55802528_20   Material Adverse Effect. The property of the Borrower and its Restricted Subsidiaries is not5192   subject to Liens, other than Permitted Liens.5193   Section 6.10. Environmental Matters. Except with respect to any matters that, either5194   individually or in the aggregate, could not reasonably be expected to result in a Material Adverse5195   Effect:5196   (a) Each Credit Party, and their respective operations and properties, are in5197   compliance with Environmental Laws, which includes obtaining and maintaining all permits,5198   licenses and other approvals as required under any Environmental Law to carry on the business5199   of the Credit Parties;5200   (b) neither the Borrower nor any of its Restricted Subsidiaries have received5201   or are subject to any claim under Environmental Laws;5202   (c) there has been no Release of Hazardous Materials on, at, under or from5203   any real property or facilities owned, operated or leased by any of the Credit Parties, or, to the5204   knowledge of the Borrower, real property formerly owned, operated or leased by any Credit5205   Party that, in any case, could reasonably be expected to require the Borrower to perform any5206   investigation, remedial activity or corrective action or cleanup under Environmental Laws or5207   could otherwise reasonably be expected to result in the Borrower incurring Environmental5208   Liability.5209   The Borrower and its Restricted Subsidiaries periodically conduct in the ordinary course5210   of business a review of the effect of existing Environmental Laws and claims alleging potential5211   liability or responsibility for violation of any Environmental Law and Environmental Liabilities5212   on their respective businesses, operations and properties, and such Environmental Laws, claims5213   and Environmental Liabilities would not, individually or in the aggregate, reasonably be5214   expected to result in a Material Adverse Effect.5215   Section 6.11. [Reserved].5216   Section 6.12. Taxes. The Borrower and its Restricted Subsidiaries have filed all U.S.5217   federal income and other material tax returns and reports required to be filed, and have paid all5218   taxes, assessments, fees and other governmental charges levied or imposed upon them or their5219   properties, income or assets otherwise due and payable, except those that are being contested in5220   good faith by appropriate proceedings and for which adequate reserves have been provided in5221   accordance with GAAP or that could not, individually or in the aggregate, reasonably be5222   expected to result in a Material Adverse Effect.5223   Section 6.13. ERISA Compliance.5224   (a) Except as could not reasonably be expected to result in a Material Adverse5225   Effect, each Plan is in compliance in all material respects with the applicable provisions of5226   ERISA, the Internal Revenue Code and other federal or state Laws and each Credit Party and5227   each ERISA Affiliate is in compliance with ERISA, the Internal Revenue Code and other5228   applicable United States federal or United States state Laws with respect to each Multiemployer5229   Plan. Except as could not reasonably be expected to result in a Material Adverse Effect, each5230    





 







126   55802528_20   Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code is covered by5231   a favorable determination letter from the IRS (or an application for such a letter is currently5232   pending before the IRS with respect thereto) or is maintained under a prototype document that5233   has received a favorable opinion letter from the IRS and, to the best knowledge of the Credit5234   Parties, nothing has occurred that would prevent, or cause the loss of, such qualification. Except5235   as could not reasonably be expected to result in a Material Adverse Effect, each Credit Party and5236   each ERISA Affiliate have made all required contributions that are due and owing to each Plan5237   subject to Section 412 of the Internal Revenue Code or Section 303 of ERISA and to each5238   Multiemployer Plan under Section 412 of the Internal Revenue Code or Section 304 of ERISA,5239   and no application for a waiver of the minimum funding standard pursuant to Section 412 of the5240   Internal Revenue Code or Section 302 of ERISA has been made with respect to any Plan.5241   (b) There are no pending or, to the best knowledge of the Credit Parties,5242   threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to5243   any Plan that would reasonably be expected to have a Material Adverse Effect. There has been5244   no prohibited transaction or violation of the fiduciary responsibility rules with respect to any5245   Plan that would reasonably be expected to result in a Material Adverse Effect.5246   (c) (i) No ERISA Event has occurred or is reasonably expected to occur that5247   could reasonably be expected to result in a Material Adverse Effect; (ii) no Pension Plan has any5248   Unfunded Pension Liability in an aggregate amount which could reasonably be expected to result5249   in a Material Adverse Effect; (iii) neither any Credit Party nor any ERISA Affiliate has incurred,5250   or reasonably expects to incur, any liability in an aggregate amount which could reasonably be5251   expected to result in a Material Adverse Effect (and no event has occurred that, with the giving5252   of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 of5253   ERISA with respect to a Multiemployer Plan; and (iv) neither any Credit Party nor any ERISA5254   Affiliate has engaged in a transaction involving any Pension Plan or Multiemployer Plan that5255   would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA.5256   Section 6.14. Subsidiaries. As of the Closing Date (after giving effect to the5257   Transactions), no Credit Party has any Subsidiaries other than those specifically disclosed in5258   Schedule 6.14. The outstanding Capital Stock of each Subsidiary that has been or is required to5259   be pledged to the Collateral Agent pursuant to the Collateral and Guarantee Requirement has5260   been validly issued, is owned free of Liens other than Permitted Liens, and with respect to any5261   outstanding shares of such Capital Stock of a corporation, such shares have been validly issued5262   and are fully paid and non-assessable. As of the Closing Date, the outstanding shares of Capital5263   Stock of each Subsidiary that have been or are required to be pledged to the Collateral Agent5264   pursuant to the Collateral and Guarantee Requirement are not subject to any buy-sell, voting trust5265   or other shareholder agreement except as identified on Schedule 6.14.5266   Section 6.15. Margin Regulations; Investment Company Act.5267   (a) The Credit Parties are not engaged and will not engage, principally or as5268   one of their important activities, in the business of purchasing or carrying “margin stock” (within5269   the meaning of Regulation U issued by the FRB), or extending credit for the purpose of5270   purchasing or carrying margin stock.5271    





 







127   55802528_20   (b) Neither the Borrower nor any Credit Party is or is required to be registered5272   as an “investment company” under the Investment Company Act of 1940.5273   Section 6.16. Disclosure. No report, financial statement, certificate or other written5274   information furnished by or on behalf of any Credit Party (other than projected financial5275   information and information of a general economic or industry nature) to the Administrative5276   Agent or any Lender in connection with the transactions contemplated hereby and the5277   negotiation of this Credit Agreement or delivered hereunder or under any other Credit Document5278   considered as a whole contain any untrue statement of a material fact or omit to state any5279   material fact necessary to make the statements therein, not materially misleading in light of the5280   circumstances under which they were made (after giving effect to all supplements and updates5281   thereto); provided that, with respect to projected financial information, the Credit Parties5282   represent only that such information was prepared in good faith based upon assumptions5283   believed to be reasonable at the time furnished; it being understood that such projections may5284   vary from actual results and that such variances may be material.5285   Section 6.17. Compliance with Laws. The Borrower and its Restricted Subsidiaries are5286   in compliance with the requirements of all Laws and all orders, writs, injunctions, settlements or5287   other agreements with any Governmental Authority and decrees having the force of law5288   applicable to them or to their properties, except in such instances in which (i) such requirement5289   of Law or order, writ, injunction or decree is being contested in good faith by appropriate5290   proceedings diligently conducted or (ii) the failure to comply therewith, either individually or in5291   the aggregate, would not reasonably be expected to have a Material Adverse Effect.5292   Section 6.18. Collateral Documents. Each Collateral Document is effective to create in5293   favor of the Collateral Agent, for the benefit of the holders of the Obligations, a legal, valid and5294   enforceable security interest in the Collateral identified therein, except to the extent that the5295   enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’5296   rights generally and by equitable principles of law (regardless of whether enforcement is sought5297   in equity or at law) and, together with such filings and other actions required to be taken hereby5298   or by the applicable Collateral Documents, the Collateral Documents shall create a fully5299   perfected first priority Lien on, and security interest in, all right, title and interest of the grantors5300   thereunder in such Collateral (to the extent that such Liens may be perfected by the filing of a5301   financing statement or other appropriate action), in each case subject to no other Lien (other than5302   Permitted Liens).5303   Notwithstanding anything herein (including this Section 6.18) or in any other Credit5304   Document to the contrary, neither the Borrower nor any other Credit Party makes any5305   representation or warranty as to (A) the effects of perfection or non-perfection, the priority or the5306   enforceability of any pledge of or security interest in any Capital Stock of any Foreign5307   Subsidiary, or as to the rights and remedies of the Collateral Agent or any Lender with respect5308   thereto, under foreign Law, (B) the pledge or creation of any security interest, or the effects of5309   perfection or non-perfection, the priority or the enforceability of any pledge of or security5310   interest to the extent such pledge, security interest, perfection or priority is not required pursuant5311   to the Collateral and Guarantee Requirement or (C) on the Closing Date and until required5312   pursuant to Section 7.12 or 5.01(d), the pledge or creation of any security interest, or the effects5313    





 







128   55802528_20   of perfection or non-perfection, the priority or enforceability of any pledge or security interest to5314   the extent not required on the Closing Date pursuant to Section 5.01(d).5315   Section 6.19. Intellectual Property. The Borrower and its Restricted Subsidiaries own,5316   license or possess the right to use all of the trademarks, service marks, trade names, domain5317   names, copyrights, patents, patent rights, licenses, technology, software, know-how database5318   rights, design rights and other intellectual property rights (collectively, “IP Rights”) that are5319   reasonably necessary for the operation of their respective businesses as currently conducted, and5320   such IP Rights do not conflict with the rights of any Person, except to the extent the absence of5321   such IP Rights and such conflicts, either individually or in the aggregate, could not reasonably be5322   expected to have a Material Adverse Effect. The operation of the respective businesses of the5323   Borrower and its Restricted Subsidiaries as currently conducted does not infringe upon any rights5324   held by any Person except for such infringements, individually or in the aggregate, which would5325   not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding5326   any of the IP Rights is pending or, to the knowledge of the Borrower, threatened in writing5327   against any Credit Party or any of the Restricted Subsidiaries, which, either individually or in the5328   aggregate, could reasonably be expected to have a Material Adverse Effect.5329   Section 6.20. Solvency. On the Closing Date, after giving effect to the Transactions, the5330   Borrower and its Restricted Subsidiaries are, on a consolidated basis, Solvent.5331   Section 6.21. Patriot Act; Sanctioned Persons.5332   (a) To the extent applicable, each Credit Party is in compliance, in all material5333   respects, with (i) the United States Trading with the Enemy Act, as amended, and each of the5334   foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle5335   B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto,5336   (ii) the Act and (iii) the United States Foreign Corrupt Practices Act of 1977, as amended (the5337   “FCPA”), the UK Bribery Act or other applicable anti-corruption laws. No part of the proceeds5338   of the Loans will be used, directly or, to the Borrower’s knowledge, indirectly, for any payments5339   to any official or employee of a Governmental Authority, political party or official, or candidate5340   for political office in order to obtain, retain or direct business or obtain any improper advantage,5341   in each such case in violation of the FCPA, the UK Bribery Act or other applicable anti-5342   corruption laws.5343   (b) Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of5344   the Borrower, any director, officer, employee, agent or controlled affiliate of the Borrower is an5345   individual or entity (for purposes of this Section 6.21(b), a “Person”) that is, or is owned or5346   controlled by Persons that are the subject of any sanctions (i) administered or enforced by the5347   United States, including the U.S. Department of the Treasury’s Office of Foreign Assets Control,5348   the United Nations Security Council, the European Union or Her Majesty’s Treasury or other5349   applicable sanctions authority, (ii) pursuant to the U.S. Iran Sanctions Act, as amended, or5350   Executive Order 13590 (collectively, “Sanctions”) or (iii) located, organized or resident in a5351   country or territory that is, or whose government is, the subject of a comprehensive trade5352   Sanctions program or embargo. The Borrower will not, directly or, to its knowledge, indirectly,5353   use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to5354   any Person (x) to fund any activities or business of or with any Person, or in any country or5355    





 







129   55802528_20   territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions,5356   in each such case as would violate Sanctions, or (y) in any other manner that would result in a5357   violation of Sanctions by any Person (including any Person participating in the Loan, whether as5358   a lender, underwriter, advisor, investor or otherwise).5359   Section 6.22. EEA Financial Institutions. No Credit Party is an EEA Financial5360   Institution.5361   ARTICLE 75362   AFFIRMATIVE COVENANTS5363   From and after the Closing Date, until the Loan Obligations (other than (i) contingent5364   indemnification obligations as to which no claim has been asserted, (ii) Obligations described in5365   clauses (b) and (c) of the definition thereof and (iii) any Letter of Credit that has been Cash5366   Collateralized or back-stopped by a letter of credit reasonably satisfactory to the L/C Issuer or5367   such Letter of Credit has been deemed reissued under another agreement reasonably acceptable5368   to the L/C Issuer) shall have been paid in full or otherwise satisfied, and the Commitments5369   hereunder shall have expired or been terminated, the Borrower and its Restricted Subsidiaries5370   will:5371   Section 7.01. Financial Statements. Deliver to the Administrative Agent (and the5372   Administrative Agent will deliver to each Lender):5373   (a) within ninety (90) days after the end of each fiscal year of the Borrower, a5374   consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year,5375   and the related consolidated statements of comprehensive income, shareholders’ equity and cash5376   flows for such fiscal year, setting forth in each case in comparative form the figures for the5377   previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, including a5378   customary management’s discussion and analysis narrative, audited and accompanied by a report5379   and opinion of KPMG LLP or any other independent registered public accounting firm of5380   nationally recognized standing, which report and opinion (i) shall be prepared in accordance with5381   generally accepted auditing standards and (ii) shall not be subject to any “going concern” or like5382   qualification or exception or any qualification or exception as to the scope of such audit (except5383   as may be required as a result of (x) a prospective Event of Default with respect to the Financial5384   Covenants or (y) the impending maturity of any Facility, any Incremental Equivalent Debt or any5385   Refinancing Equivalent Debt);5386   (b) within forty-five (45) days after the end of each of the first three (3) fiscal5387   quarters of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its5388   Subsidiaries as at the end of such fiscal quarter and the related (i) consolidated statements of5389   comprehensive income for such fiscal quarter and for the portion of the fiscal year then ended,5390   (ii) consolidated statements of cash flows for the portion of the fiscal year then ended, setting5391   forth in each case in comparative form the figures for the corresponding portion of the previous5392   fiscal year and (iii) a customary management’s discussion and analysis narrative, all in5393   reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in5394   all material respects the financial condition, results of operations and cash flows of the Borrower5395    





 







130   55802528_20   and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit5396   adjustments; and5397   (c) simultaneously with the delivery of each set of consolidated financial5398   statements referred to in Sections 7.01(a) and 7.01(b) above, the related unaudited consolidating5399   financial statements reflecting the adjustments necessary to eliminate the accounts of5400   Unrestricted Subsidiaries (if any) (which may be in footnote form only) from such consolidated5401   financial statements.5402   Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this5403   Section 7.01 may be satisfied with respect to financial information of the Borrower and the5404   Restricted Subsidiaries by furnishing (A) the applicable financial statements of the Borrower or5405   (B) the Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with5406   respect to clauses (A) and (B), to the extent such information is in lieu of information required to5407   be provided under Section 7.01(a), such materials are, to the extent applicable, accompanied by a5408   report and opinion of KPMG LLP or any other independent registered public accounting firm of5409   nationally recognized standing, which report and opinion shall be prepared in accordance with5410   generally accepted auditing standards and shall not be subject to any “going concern” or like5411   qualification or exception or any qualification or exception as to the scope of such audit (except5412   as may be required as a result of (x) a prospective Event of Default with respect to the Financial5413   Covenants or (y) the impending maturity of any Facility, any Incremental Equivalent Debt or any5414   Refinancing Equivalent Debt).5415   Section 7.02. Certificates; Other Information. Deliver to the Administrative Agent (and5416   the Administrative Agent will deliver to each Lender), in form and detail reasonable satisfactory5417   to the Administrative Agent:5418   (a) concurrently with the delivery of the financial statements referred to in5419   Sections 7.01(a) and (b) and (b) (beginning with the first full fiscal quarter ending after the5420   Closing Date), a duly completed Compliance Certificate signed by a Responsible Officer of the5421   Borrower;5422   (b) concurrently with the delivery of the financial statements referred to in5423   Sections 7.01(a) and (b), a reasonably detailed consolidated budget for the then-current fiscal5424   year on a quarterly basis (including a projected consolidated balance sheet of the Borrower and5425   its Subsidiaries as of the end of such fiscal year and the related consolidated statements of5426   projected cash flow and projected income for such fiscal year and a summary of the material5427   underlying assumptions applicable thereto) (collectively, the “Projections”), which Projections5428   shall in each case be accompanied by a certificate of a Responsible Officer stating that such5429   Projections have been prepared in good faith on the basis of the assumptions stated therein,5430   which assumptions were believed to be reasonable at the time of furnished, it being understood5431   that actual results may vary from such Projections and that such variations may be material;5432   (c) promptly after the same are available, copies of each annual report, proxy5433   or financial statement or other report or communication sent to the stockholders of the Borrower,5434   and copies of all annual, regular, periodic and special reports and registration statements that the5435    





 







131   55802528_20   Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange5436   Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto; and5437   (d) promptly, such additional information regarding the business, financial or5438   corporate affairs of any Credit Party or any Restricted Subsidiary of a Credit Party, or5439   compliance with the terms of the Credit Documents, as the Administrative Agent (including at5440   the direction of a Lender) may from time to time reasonably request.5441   Documents required to be delivered pursuant to Section 7.01 or Section 7.02(b) or (c) (to5442   the extent that any such documents are included in materials otherwise filed with the SEC) may5443   be delivered electronically and, if so delivered, shall be deemed to have been delivered on the5444   date on which the Borrower posts such documents, or provide a link thereto on the Borrower’s5445   website on the Internet at the website address listed on Schedule 11.02 (as may be updated by the5446   Borrower from time to time); or on which such documents are posted on the Borrower’s behalf5447   on an Internet or intranet website, if any, to which each Lender and the Administrative Agent5448   have access (whether a commercial, third-party website or whether sponsored by the5449   Administrative Agent); provided that: (a) the Borrower shall deliver paper copies of such5450   documents to the Administrative Agent or any Lender that requests the Borrower to deliver such5451   paper copies and (b) the Borrower shall notify (which may be by facsimile or electronic mail) the5452   Administrative Agent of the posting of any such documents and provide to the Administrative5453   Agent by electronic mail electronic versions (i.e., soft copies) of such documents.5454   Notwithstanding anything contained herein, in every instance the Borrower shall be required to5455   provide paper copies of the Compliance Certificates required by Section 7.02(a) to the5456   Administrative Agent (which may be electronic copies delivered via electronic mail). The5457   Administrative Agent shall have no obligation to request the delivery or to maintain copies of the5458   documents referred to above, and in any event shall have no responsibility to monitor5459   compliance by the Borrower with any such request for delivery, and each Lender shall be solely5460   responsible for requesting delivery to it or maintaining its copies of such documents.5461   The Credit Parties hereby acknowledge that (a) the Administrative Agent and/or the5462   Arrangers will make available to the Lenders and the L/C Issuer materials and/or information5463   provided by or on behalf of the Credit Parties hereunder (collectively, “Credit Party Materials”)5464   by posting the Credit Party Materials on IntraLinks or another similar electronic system (the5465   “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may have personnel who5466   do not wish to receive material non-public information with respect to the Borrower or its5467   Subsidiaries and Affiliates, or the respective securities of any of the foregoing, and who may be5468   engaged in investment and other market-related activities with respect to such Persons’ securities.5469   The Credit Parties hereby agree that so long as any of the Credit Parties is the issuer of any5470   outstanding debt or equity securities that are registered or issued pursuant to a private offering or5471   is actively contemplating issuing any such securities that (w) all Credit Party Materials that are to5472   be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”5473   which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first5474   page thereof; (x) by marking Credit Party Materials “PUBLIC,” the Credit Parties shall be5475   deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the5476   Lenders to treat such Credit Party Materials as not containing any material non-public5477   information (although such information may be sensitive and proprietary) with respect to the5478   Credit Parties or their securities for purposes of United States federal and state securities Laws5479    





 







132   55802528_20   (provided that to the extent that such Credit Party Materials constitute Information, they shall be5480   treated as set forth in Section 11.07), (y) all Credit Party Materials marked “PUBLIC” are5481   permitted to be made available through a portion of the Platform designated as “Public Side5482   Information” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any5483   Credit Party Materials that are not marked “PUBLIC” as being suitable only for posting on a5484   portion of the Platform not designated “Public Side Information.” Notwithstanding the5485   foregoing, the Credit Parties shall be under no obligation to mark any Credit Party Materials5486   “PUBLIC.”5487   Section 7.03. Notification. Promptly after a Responsible Officer of the Borrower or any5488   Guarantor has obtained actual knowledge thereof, notify the Administrative Agent:5489   (a) of the occurrence of any Default;5490   (b) of the filing or commencement of, or any written threat or notice of5491   intention of any person to file or commence, any action, suit, litigation or proceeding (including5492   pursuant to any applicable Environmental Laws), whether at law or in equity by or before any5493   Governmental Authority against the Borrower or any of its Restricted Subsidiaries, that could in5494   each case reasonably be expected to result in a Material Adverse Effect; and5495   (c) of the occurrence of any ERISA Event which could reasonably be5496   expected to result in a Material Adverse Effect.5497   Each notice pursuant to this Section shall be accompanied by a statement of a5498   Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and5499   stating what action the Borrower has taken and proposes to take with respect thereto. Each5500   notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this5501   Credit Agreement and any other Credit Document that have been breached.5502   Section 7.04. Payment of Taxes. Pay and discharge, as the same shall become due and5503   payable (beyond any period of grace or cure, if applicable), all its obligations and liabilities, in5504   respect of Taxes imposed upon it or upon its income or profits or in respect of its property,5505   unless the same are being contested in good faith by appropriate proceedings diligently5506   conducted and adequate reserves in accordance with GAAP are being maintained by the5507   Borrower and its Restricted Subsidiaries or the failure to pay or discharge the same would not5508   reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.5509   Section 7.05. Preservation of Existence, Etc.5510   (a) Preserve, renew and maintain in full force and effect its legal existence5511   and good standing under the Laws of the jurisdiction of its organization, except (i) in connection5512   with a transaction permitted by Section 8.04 or 8.05 or (ii) with respect to any Restricted5513   Subsidiary, to the extent that the failure to do so could not reasonably be expected to have,5514   individually or in the aggregate, a Material Adverse Effect;5515   (b) take all commercially reasonable action to maintain all rights, privileges,5516   permits, licenses and franchises necessary or desirable in the normal conduct of its business,5517    





 







133   55802528_20   except to the extent that failure to do so would not reasonably be expected to have a Material5518   Adverse Effect; and5519   (c) preserve or renew all of its patents, registered copyrights, registered5520   trademarks, trade names and service marks, the non-preservation or non-renewal of which could5521   reasonably be expected to have a Material Adverse Effect.5522   Section 7.06. Maintenance of Properties. Maintain, preserve and protect all of its5523   material Property necessary in the operation of its business in good working order and condition,5524   ordinary wear and tear excepted and casualty and condemnation excepted and make all necessary5525   repairs and replacements thereof or thereto in accordance with customary industry practice,5526   except where the failure to do so could not reasonably be expected to have a Material Adverse5527   Effect.5528   Section 7.07. Maintenance of Insurance.5529   (a) Maintain in full force and effect with financially sound and reputable5530   insurance companies (in the good faith judgment of the Borrower) that are not Affiliates of the5531   Borrower, flood, casualty and liability insurance with respect to its material properties (that are5532   necessary for the operation of their respective businesses) and business against loss or damage of5533   the kinds customarily insured against by Persons engaged in the same or similar business, of5534   such types and in such amounts as are customarily carried under similar circumstances by such5535   other Persons (provided that the Borrower and its Restricted Subsidiaries may self-insure to the5536   extent customary among companies engaged in similar businesses or advisable in the good faith5537   judgment of the Borrower) and identifying the Administrative Agent as mortgagee and loss5538   payee as its interests may appear, with respect to flood hazard and casualty insurance, and as5539   additional insured, with respect to liability insurance and providing for prior notice to the5540   Administrative Agent of the termination, lapse or cancellation of any such insurance.5541   (b) Notwithstanding anything herein to the contrary, with respect to each5542   Mortgaged Property, if at any time the area in which the buildings and other improvements (as5543   described in the applicable Mortgage) are located is designated a “special flood hazard area” in5544   any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or5545   any successor agency) in a community where flood insurance coverage under NFIP is available,5546   obtain flood insurance in such total amount as required by the applicable Flood Laws and5547   otherwise as the Administrative Agent may from time to time reasonably require, and otherwise5548   to ensure compliance with the NFIP as set forth in the Flood Laws. Following the Closing Date,5549   the Borrower shall deliver to the Administrative Agent annual renewals of each flood insurance5550   policy or annual renewals of each force-placed flood insurance policy, as applicable. In5551   connection with any amendment to this Agreement pursuant to which any increase, extension, or5552   renewal of Loans is contemplated, upon the Administrative Agent’s request, the Borrower shall5553   cause to be delivered to the Administrative Agent for any Mortgaged Property, a Flood5554   Determination Form, Borrower Notice and Evidence of Flood Insurance, as applicable.5555   Section 7.08. Compliance with Laws; Environmental Laws.5556    





 







134   55802528_20   (a) Comply in all respects with the requirements of all Laws and all orders,5557   writs, injunctions and decrees applicable to it or to its business or property, except in such5558   instances in which (i) such requirement of Law or order, writ, injunction or decree is being5559   contested in good faith by appropriate proceedings diligently conducted; or (ii) the failure to5560   comply therewith would not reasonably be expected to have a Material Adverse Effect.5561   (b) Except, in each case, to the extent that the failure to do so could not5562   reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,5563   comply, and take all reasonable actions to cause all lessees and other Persons operating or5564   occupying its properties to comply with all Environmental Laws; obtain and renew all5565   Environmental Permits necessary for its operations and properties; and, in each case to the extent5566   the Credit Parties are required by applicable Environmental Laws, conduct any investigation,5567   remedial or other corrective action necessary to address Hazardous Materials at any property or5568   facility in accordance with applicable Environmental Laws.5569   Section 7.09. Books and Records. Maintain proper books of record and account, in5570   which true and correct entries in conformity with GAAP shall be made of all financial5571   transactions and matters involving the assets and business of the Borrower or such Restricted5572   Subsidiary, as the case may be (it being understood and agreed that certain Foreign Subsidiaries5573   maintain individual books and records in conformity with generally accepted accounting5574   principles in their respective countries of organization and that such maintenance shall not5575   constitute a breach of the representations, warranties or covenants hereunder), and such books of5576   record and account in material conformity with all applicable requirements of any Governmental5577   Authority having regulatory jurisdiction over the Borrower or such Restricted Subsidiary.5578   Section 7.10. Inspection Rights. Permit representatives and independent contractors of5579   the Administrative Agent to visit and inspect any of its properties, to examine its corporate,5580   financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its5581   affairs, finances and accounts with its directors, officers, and independent public accountants5582   (subject to such accountants’ customary policies and procedures), all at the reasonable expense5583   of the Borrower and at such reasonable times during normal business hours once each fiscal year,5584   upon reasonable advance notice to the Borrower; provided, however, that when an Event of5585   Default has occurred and is continuing, the Administrative Agent (or any of its respective5586   representatives or independent contractors) may do any of the foregoing at the expense of the5587   Borrower at any time during normal business hours upon reasonable advance notice; provided,5588   further, that, excluding any such visits and inspections during the continuance of an Event of5589   Default, the Borrower will be responsible for the costs and expenses of the Administrative Agent5590   only for one such visit and inspection in any fiscal year of the Borrower. The Administrative5591   Agent shall give the Borrower the opportunity to participate in any discussions with the5592   Borrower’s independent public accountants. Notwithstanding anything to the contrary in this5593   Section 7.10, none of the Borrower or any of the Restricted Subsidiaries will be required to5594   disclose, permit the inspection, examination or making copies or abstracts of, or discussion of,5595   any document, information or other matter that (a) constitutes non-financial trade secrets or non-5596   financial proprietary information, (b) in respect of which disclosure to the Administrative Agent5597   or any Lender (or their respective representatives or contractors) is prohibited by Law or any5598   binding agreement or (c) is subject to attorney-client or similar privilege or constitutes attorney5599   work product; provided that, in each case, the Borrower shall provide notice to the5600    





 







135   55802528_20   Administrative Agent that such information is being withheld and (other than with respect to5601   clause (c) above) the Borrower shall use its commercially reasonable efforts to obtain the5602   relevant consents and to communicate, to the extent both feasible and permitted under applicable5603   Law or confidentiality obligation, the applicable information.5604   Section 7.11. Use of Proceeds. Use the Credit Extensions under the Facilities on the5605   Closing Date (subject to limitations set forth in Section 2.01(b) with respect to the use of5606   proceeds of the Revolving Credit Loans made on the Closing Date) to consummate the5607   Transactions and pay Transaction Expenses, and after the Closing Date, use the proceeds of any5608   Credit Extension to finance working capital, capital expenditures and other general corporate5609   purposes, including Acquisitions and Restricted Payments otherwise permitted hereunder.5610   Section 7.12. Joinder of Subsidiaries as Guarantors. At the Borrower’s expense,5611   subject to the limitations and exceptions of this Credit Agreement, including the provisions of5612   the Collateral and Guarantee Requirement and any applicable limitation in any Collateral5613   Document, take all action necessary or reasonably requested by the Administrative Agent to5614   ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:5615   (a) Upon the formation or acquisition of any new direct or indirect wholly5616   owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any5617   Credit Party or the designation in accordance with Section 7.14 of any existing direct or indirect5618   wholly owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than5619   an Excluded Subsidiary) or any Subsidiary becoming a wholly owned Material Domestic5620   Subsidiary (in each case, other than an Excluded Subsidiary):5621   (i) within 30 days after such formation, acquisition or cessation, or5622   such longer period as the Administrative Agent may agree in its discretion:5623   (A) cause each such Material Domestic Subsidiary that is5624   required to become a Guarantor pursuant to the Collateral and Guarantee5625   Requirement to duly execute and deliver to the Administrative Agent a5626   Joinder Agreement, joinders to the Security Agreement, Intellectual5627   Property Security Agreements, a counterpart of the Intercompany Note5628   and other security agreements and documents as reasonably requested by5629   and in form and substance reasonably satisfactory to the Administrative5630   Agent (consistent with the Security Agreement, Intellectual Property5631   Security Agreements and other security agreements in effect on the5632   Closing Date), in each case granting Liens required by the Collateral and5633   Guarantee Requirement, other than, in each case, with respect to any5634   Excluded Property;5635   (B) cause each such Material Domestic Subsidiary that is5636   required to become a Guarantor pursuant to the Collateral and Guarantee5637   Requirement (and the parent of each such Material Domestic Subsidiary5638   that is a Guarantor) to deliver any and all certificates representing Capital5639   Stock (to the extent certificated) and intercompany notes (to the extent5640   certificated) that are required to be pledged pursuant to the Collateral and5641    





 







136   55802528_20   Guarantee Requirement or the Security Agreement, accompanied by5642   undated stock powers or other appropriate instruments of transfer executed5643   in blank;5644   (C) take and cause such Material Domestic Subsidiary that is5645   required to become a Guarantor pursuant to the Collateral and Guarantee5646   Requirement and the parent of such Material Domestic Subsidiary to take5647   whatever action (including the recording of Mortgages, the filing of UCC5648   financing statements and delivery of stock and membership interest5649   certificates to the extent certificated) as may be required pursuant to the5650   terms of the Collateral Documents or as may be necessary in the5651   reasonable opinion of the Administrative Agent to vest in the5652   Administrative Agent (or in any representative of the Administrative5653   Agent designated by it) valid and perfected Liens to the extent required by5654   the Collateral and Guarantee Requirement, and to otherwise comply with5655   the requirements of the Collateral and Guarantee Requirement;5656   (ii) if reasonably requested by the Administrative Agent, within forty-5657   five (45) days after such request (or such longer period as the Administrative5658   Agent may agree in its discretion), deliver to the Administrative Agent a signed5659   copy of an opinion, addressed to the Administrative Agent and the Lenders, of5660   counsel for the Credit Parties to the Administrative Agent as to such matters set5661   forth in this Section 7.12(a) as the Administrative Agent may reasonably request;5662   (iii) as promptly as practicable after the request therefor by the5663   Administrative Agent, deliver to the Administrative Agent with respect to each5664   Specified Real Property, any existing title reports, abstracts or environmental5665   assessment reports, to the extent available and in the possession or control of the5666   Borrower; provided, however, that there shall be no obligation to deliver to the5667   Administrative Agent any existing environmental assessment report whose5668   disclosure to the Administrative Agent would require the consent of a Person5669   other than the Borrower or one of its Subsidiaries, where, despite the5670   commercially reasonable efforts of the Borrower to obtain such consent, such5671   consent cannot be obtained; and5672   (iv) if reasonably requested by the Administrative Agent, within sixty5673   (60) days after such request (or such longer period as the Administrative Agent5674   may agree in its discretion), deliver to the Administrative Agent any other items5675   necessary from time to time to satisfy the Collateral and Guarantee Requirement5676   with respect to perfection and existence of security interests with respect to5677   property of any Guarantor acquired after the Closing Date and subject to the5678   Collateral and Guarantee Requirement, but not specifically covered by the5679   preceding clauses (i), (ii) or (iii) or subsection (b) below.5680   (b) Not later than ninety (90) days after the acquisition by any Credit Party of5681   Specified Real Property (or such longer period as the Administrative Agent may agree in its5682   discretion) that is required to be provided as Collateral pursuant to the Collateral and Guarantee5683    





 







137   55802528_20   Requirement, which property would not be automatically subject to another Lien pursuant to pre-5684   existing Collateral Documents, cause such property to be subject to a Lien and Mortgage in favor5685   of the Collateral Agent for the ratable benefit of the holders of the Secured Obligations and take,5686   or cause the relevant Credit Party to take, such actions as shall be necessary or reasonably5687   requested by the Administrative Agent to grant and perfect or record such Lien, in each case to5688   the extent required by, and subject to the limitations and exceptions of this Credit Agreement,5689   including the Collateral and Guarantee Requirement, and to otherwise comply with the5690   requirements of the Collateral and Guarantee Requirement.5691   Section 7.13. Further Assurances. Promptly upon reasonable request by the5692   Administrative Agent (i) correct any material defect or error that may be discovered in the5693   execution, acknowledgment, filing or recordation of any Collateral Document or other document5694   or instrument relating to any Collateral, and (ii) do, execute, acknowledge, deliver, record, re-5695   record, file, re-file, register and re-register any and all such further acts, deeds, certificates,5696   assurances and other instruments as the Administrative Agent may reasonably request from time5697   to time in order to carry out more effectively the purposes of the Collateral Documents, to the5698   extent required pursuant to the Collateral and Guarantee Requirement.5699   Section 7.14. Designation of Subsidiaries. The Borrower may at any time after the5700   Closing Date designate any Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary5701   or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before5702   and after such designation, no Event of Default shall have occurred and be continuing, and (ii)5703   the Borrower is in pro forma compliance with the Financial Covenants. The designation of any5704   Subsidiary as an Unrestricted Subsidiary after the Closing Date shall be deemed to constitute an5705   Investment by the Borrower therein at the date of designation. The designation of any5706   Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time5707   of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time5708   and (ii) a return on any Investment by the Borrower in Unrestricted Subsidiaries.5709   Section 7.15. Post-Closing Obligations. Complete each of the actions described on5710   Schedule 7.15 as soon as commercially reasonable and by no later than the date set forth in5711   Schedule 7.15 with respect to such action or such later date as the Administrative Agent may5712   agree in its sole discretion.5713   ARTICLE 85714   NEGATIVE COVENANTS5715   From and after the Closing Date, until the Loan Obligations (other than (i) contingent5716   indemnification obligations as to which no claim has been asserted, (ii) Obligations described in5717   clauses (b) and (c) of the definition thereof and (iii) any Letter of Credit that has been Cash5718   Collateralized or back-stopped by a letter of credit reasonably satisfactory to the L/C Issuer or5719   such Letter of Credit has been deemed reissued under another agreement reasonably acceptable5720   to the L/C Issuer) shall have been paid in full or otherwise satisfied, and the Commitments5721   hereunder shall have expired or been terminated, the Borrower shall not, and shall not permit any5722   Restricted Subsidiary to:5723    





 







138   55802528_20   Section 8.01. Liens. Create, incur, assume or suffer to exist any Lien upon any of its5724   property, assets or revenues, whether now owned or hereafter acquired, other than the following:5725   (a) Liens pursuant to any Credit Document securing the Loan Obligations,5726   including Cash Collateral and other Adequate Assurance pledged to the L/C Issuer and the5727   Swingline Lender to secure obligations of Defaulting Lenders;5728   (b) Liens securing Indebtedness permitted by Section 8.03(q) and (r);5729   (c) Liens securing obligations pursuant to a Swap Contract or Treasury5730   Management Agreement permitted hereunder in favor of a Person that was (or was an Affiliate5731   of) a Lender hereunder on the Closing Date or on the date such transaction was entered into, but5732   only to the extent that (i) for any Swap Contract, the obligations under such Swap Contract are5733   permitted under Section 8.03(d), (ii)such Liens are on the same collateral that secures the Loan5734   Obligations and (iii) the obligations under such Swap Contract or Treasury Management5735   Agreement and the Loan Obligations share pari passu in the collateral that is subject to such5736   Liens;5737   (d) Liens existing on the Closing Date and listed on Schedule 8.01 and any5738   modifications, replacements, renewals, refinancings or extensions thereof; provided that (i) the5739   property covered thereby is not changed other than after-acquired property that is affixed or5740   incorporated into the property covered by such Lien and any proceeds of products of such5741   property, (ii) the amount secured or benefited thereby is not increased except by an amount equal5742   to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such5743   Indebtedness, and fees and expenses reasonably incurred, in connection with such modification,5744   refinancing, refunding, renewal, replacement or extension, (iii) the direct or any contingent5745   obligor with respect thereto is not changed and (iv) any modification, replacement, renewal,5746   refinancing or extension of the obligations secured or benefited thereby is permitted by Section5747   8.03(b);5748   (e) Liens for taxes not yet due or that are being contested in good faith and by5749   appropriate proceedings diligently conducted, if adequate reserves with respect thereto are5750   maintained on the books of the applicable Person in accordance with GAAP;5751   (f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,5752   landlords’ or sublandlords’ or other like Liens arising in the ordinary course of business that are5753   not overdue for a period of more than 60 days or if more than 60 days overdue, are unfiled and5754   no other action has been taken to enforce such Lien or which are being contested in good faith5755   and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto5756   are maintained on the books of the applicable Person in accordance with GAAP or the equivalent5757   accounting principles in the relevant local jurisdiction;5758   (g) (i) pledges or deposits in the ordinary course of business in connection5759   with workers’ compensation, health, disability or employee benefits, unemployment insurance5760   and other social security legislation or similar legislation or regulation or other insurance-related5761   obligations (including in respect of deductibles, self-insured retention amounts and premiums5762   and adjustments thereto), other than any Lien imposed by Title IV of ERISA and (ii) pledges and5763    





 







139   55802528_20   deposits in the ordinary course of business securing liability for reimbursement or5764   indemnification obligations of (including obligations in respect of letters of credit or bank5765   guarantees for the benefit of) insurance carriers providing property, casualty or liability5766   insurance to the Borrower or any of its Restricted Subsidiaries;5767   (h) deposits to secure the performance of bids, trade contracts, governmental5768   contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety,5769   stay, customs and appeal bonds, performance bonds and other obligations of a like nature5770   incurred in the ordinary course of business or consistent with past practice or industry practice;5771   (i) zoning restrictions, easements, rights-of-way, covenants, conditions,5772   restrictions, reservations, encroachments and other similar encumbrances affecting real property5773   that, in the aggregate, are not substantial in amount, and that do not in any case materially detract5774   from the value of the property subject thereto or materially interfere with the ordinary conduct of5775   the business of the Borrower or any of its Restricted Subsidiaries, taken as a whole;5776   (j) Liens securing judgments for the payment of money not constituting an5777   Event of Default under Section 9.01(h) or securing appeal or other surety bonds related to such5778   judgments;5779   (k) Liens securing, or in respect of, obligations under Capitalized Leases and5780   purchase money obligations for fixed or capital assets; provided that such Liens do not at any5781   time encumber any property (except for replacements, additions and accessions to such property)5782   other than the property financed by such Indebtedness except that that individual financings of5783   equipment provided by one lender may be cross collateralized to other financings of equipment5784   provided by such lender;5785   (l) Liens in favor of customs and revenue authorities arising as a matter of5786   law to secure payment of customs duties in connection with the importation of goods in the5787   ordinary course of business;5788   (m) Liens on property or assets acquired in connection with an Acquisition5789   permitted under this Agreement; provided that (i) the indebtedness secured by such Liens is5790   permitted under Section 8.03 and (ii) the Liens (A) are not incurred in connection with, or in5791   contemplation or anticipation of, the acquisition, (B) are not, in the case of any Credit Party,5792   “blanket liens”, and (C) do not attach or extend to any other property or assets (other than the5793   proceeds or products thereof and other than after-acquired property subjected to such Lien in5794   accordance with the terms governing the Indebtedness secured by such Lien);5795   (n) Liens of landlords or mortgages of landlords on fixtures, equipment and5796   movable property located on premises leased by the Borrower or any Restricted Subsidiary5797   which do not interfere in any material respect with the business of the Borrower and its5798   Restricted Subsidiaries, taken as a whole;5799   (o) Liens incurred and financing statements filed or recorded in each case5800   with respect to property leased by the Borrower and its Restricted Subsidiaries to the owners of5801   such property which are operating leases; provided that such Lien does not extend to any other5802   property of the Borrower and its Restricted Subsidiaries;5803    





 







140   55802528_20   (p) Liens (i) of a collection bank arising under Section 4-208 of the UCC on5804   items in the course of collection, (ii) attaching to commodity trading accounts or other5805   commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor of5806   a banking or other financial institution arising as a matter of Law or under customary general5807   terms and conditions encumbering deposits or other funds maintained with a financial institution5808   (including the right of set-off) and that are within the general parameters customary in the5809   banking industry or arising pursuant to such banking institution’s general terms and conditions;5810   (q) deposits of cash or the issuance of a Letter of Credit made to secure5811   liability to insurance carriers under insurance or self-insurance arrangements;5812   (r) Liens (i) on cash advances in favor of the seller of any property to be5813   acquired in an Investment permitted under Section 8.02 to be applied against the purchase price5814   for such Investment or other acquisition, and (ii) consisting of an agreement to Dispose of any5815   property in a Disposition permitted under Section 8.05, in each case, solely to the extent such5816   Investment or other acquisition or Disposition, as the case may be, would have been permitted on5817   the date of the creation of such Lien;5818   (s) Liens on property or assets of Restricted Subsidiaries that are not Credit5819   Parties securing obligations of Restricted Subsidiaries that are not Credit Parties;5820   (t) Liens on Collateral securing Ratio Debt (and any Permitted Refinancing5821   thereof); provided that such Liens shall be junior to the Liens securing the Obligations and shall5822   be subject to a lien subordination and intercreditor arrangement in form and substance5823   reasonably satisfactory to the Administrative Agent;5824   (u) leases, licenses, cross-licenses, subleases or sublicenses not interfering in5825   any material respect with the business of the Borrower and its Restricted Subsidiaries, or5826   otherwise materially diminishing the value of the Collateral, in either case taken as a whole;5827   (v) Liens arising from precautionary UCC financing statements or similar5828   filings in connection with any transaction otherwise not prohibited under this Agreement;5829   (w) additional Liens so long as the aggregate principal amount of the5830   obligations so secured does not exceed the greater of (i) $15,000,000 and (ii) 2.25% of Total5831   Assets;5832   (x) Liens that are contractual rights of set-off or rights of pledge (i) relating to5833   the establishment of depository relations with banks or other deposit-taking financial institutions5834   and not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or5835   sweep accounts of the Borrower or any of its Restricted Subsidiaries to permit satisfaction of5836   overdraft or similar obligations incurred in the ordinary course of business of the Borrower or5837   any of its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered5838   into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course5839   of business;5840    





 







141   55802528_20   (y) Liens solely on any cash earnest money deposits made by the Borrower or5841   any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement5842   permitted hereunder; and5843   (z) Liens on specific items of inventory or other goods and the proceeds5844   thereof of any Person securing such Person’s obligations in respect of letters of credit or banker’s5845   acceptances issued or created for the account of such Person to facilitate the purchase, shipment5846   or storage of such inventory or goods in the ordinary course of business.5847   The expansion of Liens by virtue of accrual of interest, accretion of accreted value,5848   amortization of original issue discount and increases in the amount of Indebtedness outstanding5849   solely as a result of fluctuations in the exchange rate of currencies will not be deemed to be an5850   incurrence of Liens for purposes of this Section 8.01.5851   Section 8.02. Investments. Make or permit to exist any Investments, except:5852   (a) cash and Cash Equivalents;5853   (b) Investments (including intercompany Investments) existing on the Closing5854   Date or committed to be made pursuant to an agreement existing on the Closing Date, in each5855   case listed on Schedule 8.02, or an Investment consisting of any extension, modification,5856   replacement, renewal or reinvestment of any such Investment or binding commitment existing on5857   the Closing Date; provided that the amount of any such Investment or binding commitment may5858   be increased (i) as required by the terms of such Investment or binding commitment as in5859   existence on the Closing Date (including as a result of the accrual or accretion of interest or5860   original issue discount or the issuance of pay-in-kind securities) or (ii) as otherwise permitted5861   under this Credit Agreement;5862   (c) to the extent not prohibited by applicable Law, (i) advances to officers,5863   directors, employees, managers, consultants and independent contractors of the Borrower and its5864   Restricted Subsidiaries for travel, entertainment, relocation and other ordinary business purposes,5865   (ii) loans and advances to officers, directors, employees, managers, consultants and independent5866   contractors of the Borrower or any of its Restricted Subsidiaries to finance the purchase of5867   Capital Stock of the Borrower and (iii) loans and advances to, or guarantees of Indebtedness of,5868   officers, directors, employees, managers, consultants and independent contractors; provided that5869   that the aggregate amount outstanding at any time under clauses (ii) and (iii) shall not exceed the5870   greater of (x) $5,000,000 and (y) 0.75% of Total Assets;5871   (d) (i) Investments consisting of extensions of credit in the nature of accounts5872   receivable or notes receivable arising from the grant of trade credit in the ordinary course of5873   business, (ii) Investments received in satisfaction or partial satisfaction thereof from financially5874   troubled account debtors and (iii) Investments received in satisfaction of judgments against other5875   Persons;5876   (e) any Investments in the Borrower or any of its Restricted Subsidiaries;5877   provided that the aggregate amount of Investments by Credit Parties in Restricted Subsidiaries5878   that are not Credit Parties (other than any Investment, the proceeds of which are used directly or5879   indirectly in connection with an Acquisition by such non-Credit Parties) shall not exceed,5880    





 







142   55802528_20   together with the aggregate amount of cash or property provided by Credit Parties pursuant to5881   Section 8.02(f)(A)(2), at the time of the making of any such Investment, an aggregate amount5882   outstanding at any time equal to the greater of (i) $15,000,000 and (ii) 2.25% of Total Assets;5883   (f) any Acquisition by the Borrower or any of its Restricted Subsidiaries and5884   any Investment that is part of the assets acquired in such Acquisition or otherwise held by a5885   Person that is, directly or indirectly, a target of such Acquisition; provided that, with respect to5886   each such Acquisition made pursuant to this Section 8.02(f):5887   (A) (1) each applicable Credit Party and any such newly5888   created or acquired Subsidiary shall, or will within the times specified5889   therein, have complied with the applicable requirements of Section 7.12 to5890   the extent required thereby, and (2) the aggregate amount of cash or5891   property provided by Credit Parties to make any such purchase or5892   acquisition of assets that are not purchased or acquired (or do not become5893   owned) by a Credit Party or in Capital Stock in Persons that do not5894   become Credit Parties upon consummation of such purchase or acquisition5895   shall not exceed at any time outstanding, together with Investments5896   pursuant to Section 8.02(e), the greater of (i) $15,000,000 and (ii) 2.25%5897   of Total Assets; provided, however, that the limitation related to assets that5898   are not acquired by a Credit Party or Persons that do not become Credit5899   Parties under this clause (A)(2) shall not apply to any acquisition to the5900   extent the ultimate Person so acquired (or the Person owning the assets so5901   acquired) becomes a Credit Party even though such Credit Party owns5902   Capital Stock in Persons that are not otherwise required to become Credit5903   Parties, if, for such acquisition, not less than 90.0% of the Consolidated5904   EBITDA of the Person(s) acquired (for this purpose and for the5905   component definitions used therein, determined on a consolidated basis for5906   such Persons and their Subsidiaries) is directly generated by Person(s) that5907   become Credit Parties (i.e., disregarding all such Consolidated EBITDA5908   generated by Subsidiaries of such Guarantors that are shall not become5909   Credit Parties); provided, further, that for the avoidance of doubt, such5910   limitations on cash or property provided by Credit Parties shall exclude5911   consideration provided in the form of Capital Stock of the Borrower;5912   (B) immediately after giving Pro Forma Effect to any such5913   purchase or other acquisition, (1) no Event of Default (or if such Permitted5914   Acquisition is not conditioned on the availability of, or on obtaining third5915   party financing any Event of Default under Section 9.01(a) or (f)) shall5916   have occurred and be continuing and (2) the Consolidated Total Net5917   Leverage Ratio is not greater than the Consolidated Total Net Leverage5918   Ratio permitted under Section 8.11(b) as of the most recently ended Test5919   Period for which financial statements have been delivered pursuant to5920   Section 7.01 less 0.25x; and5921   (C) the Borrower shall have delivered to the Administrative5922   Agent, no later than five (5) Business Days (or such later date as5923    





 







143   55802528_20   acceptable to the Administrative Agent in its sole discretion) after the date5924   on which any such purchase or other acquisition is consummated, a5925   certificate of a Responsible Officer certifying that all of the requirements5926   set forth in this clause (f) have been satisfied or will be satisfied on or5927   prior to the consummation of such purchase or other acquisition;5928   (g) Investments to the extent that payment for such investments is made with5929   the Capital Stock of the Borrower;5930   (h) Investments in respect of Swap Contracts permitted under Section 8.03(d);5931   (i) Investments consisting of purchases and acquisitions of assets or services5932   in the ordinary course of business;5933   (j) Investments in prepaid expenses, negotiable instruments held for5934   collection and lease, utility and workers compensation, performance and similar deposits entered5935   into as a result of the operations of the business;5936   (k) Investments in the ordinary course of business consisting of Uniform5937   Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade5938   arrangements with customers;5939   (l) Investments consisting of purchases or other acquisitions of inventory,5940   supplies, services, material or equipment or the licensing or contribution of intellectual property5941   pursuant to joint marketing arrangements with other Persons;5942   (m) Investments in an outstanding amount not to exceed, at the time any such5943   Investment is made, the sum of (x) the greater of (i) $22,500,000 and (ii) 3.50% of Total Assets5944   and (y) the Cumulative Equity Credit so long as, in each case, no Event of Default shall exist or5945   result immediately after giving effect thereto;5946   (n) Investments to the extent that, at the time any such Investments are made,5947   the Payment Conditions are satisfied; and5948   (o) Investments by the Borrower and its Subsidiaries in any Escrow Borrower5949   for purposes of funding original issue discount, upfront fees, redemption or repayment premium5950   and interest with respect to any Escrow Incremental Term Loans or debt securities issued5951   pursuant to escrow arrangements, in each case, to the extent such Escrow Incremental Term5952   Loans and debt securities are intended to provide a portion of the funds to finance an Acquisition5953   permitted under this Agreement.5954   For purposes of determining whether an Investment is a permitted to be made pursuant to5955   this Section 8.02, in the event that an Investment (or any portion thereof) meets the criteria of5956   more than one of any provision of Section 8.02, the Borrower, in its sole discretion, will classify5957   such Investment (or any portion thereof) in any one or more of the types of Investments5958   described in any applicable clause in Section 8.02 and will only be required to include the5959   amount and type of such Investment in such of the above clauses in this Section 8.02 as5960   determined by the Borrower at such time.5961    





 







144   55802528_20   Section 8.03. Indebtedness. Create, incur, assume or suffer to exist any Indebtedness,5962   except:5963   (a) Indebtedness under the Credit Documents;5964   (b) Indebtedness outstanding on the Closing Date and listed on Schedule 8.035965   and any Permitted Refinancing thereof;5966   (c) [reserved];5967   (d) obligations (contingent or otherwise) of the Borrower or any Restricted5968   Subsidiary existing or arising under any Swap Contract; provided that such obligations are5969   entered into by such Person in the ordinary course of business for the purpose of directly5970   mitigating risks associated with liabilities, commitments, investments, assets, or property held or5971   reasonably anticipated by such Person, or changes in the value of securities issued by such5972   Person, and not for purposes of speculation or taking a “market view”;5973   (e) Indebtedness of the Borrower and its Restricted Subsidiaries owing to the5974   Borrower or any Restricted Subsidiary to the extent permitted by Section 8.02; provided that any5975   such Indebtedness owed by a Credit Party to a Restricted Subsidiary that is not a Credit Party5976   shall be subject to the Intercompany Note;5977   (f) Indebtedness (including Indebtedness under Capitalized Leases and5978   purchase money obligations) incurred to provide all or a portion of the purchase price (or cost of5979   construction, acquisition, repair, lease or improvement), in each case, for capital assets and5980   refinancings, refundings, renewals or extensions thereof, provided that the aggregate principal5981   amount of all such Indebtedness shall not at any time outstanding exceed the greater of (i)5982   $15,000,000 and (ii) 2.25% of Total Assets;5983   (g) unsecured Indebtedness or Indebtedness secured by a Lien, that, in the5984   case of a Lien on the assets of a Credit Party, such Lien on the Collateral is junior to the Lien5985   securing the Obligations, so long as, after giving effect to the incurrence of such Indebtedness5986   (whether or not secured), the Consolidated Total Net Leverage Ratio is not greater than the5987   Consolidated Total Net Leverage Ratio permitted under Section 8.11(b) as of the most recently5988   ended Test Period for which financial statements have been delivered pursuant to Section 7.015989   less 0.50x (“Ratio Debt”); provided that (i) such Ratio Debt does not mature prior to the date5990   that is 91 days following the Latest Maturity Date of the Term Loan Facility or have a Weighted5991   Average Life to Maturity less than the Term Loan Facility, (ii) such Ratio Debt does not have5992   mandatory prepayment, redemption or offer to purchase events that are earlier than the Maturity5993   Date of the Term Loan Facility (but may include customary change of control and asset sale5994   proceeds offers), (i) such Ratio Debt either (a) does not have financial maintenance covenants or5995   (b) contains financial maintenance covenants that are no more restrictive than the Financial5996   Covenants, (iv) to the extent such Ratio Debt is subordinated to the Facilities, is subject to5997   subordination terms reasonably satisfactory to the Administrative Agent and (v) to the extent5998   such Ratio Debt is secured by a Lien which is junior to the Lien securing the Obligations, it is5999   subject to a lien subordination and intercreditor arrangement reasonably satisfactory to the6000   Borrower and the Administrative Agent; provided, further, that any such Indebtedness incurred6001    





 







145   55802528_20   by a Restricted Subsidiary that is not a Credit Party, together with Indebtedness incurred by a6002   Restricted Subsidiary that is not a Credit Party pursuant to Section 8.03(h), does not exceed in6003   the aggregate at any time outstanding the greater of (a) $20,000,000 and (b) 3.00% of Total6004   Assets;6005   (h) Indebtedness of the Borrower or any Restricted Subsidiary assumed6006   (including Acquired Indebtedness) in connection with, but not incurred in contemplation of, any6007   Acquisition so long as, after giving Pro Forma Effect thereto and any related transactions, the6008   Borrower could incur $1.00 of Ratio Debt; provided that any such Indebtedness incurred by a6009   Restricted Subsidiary that is not a Credit Party does not exceed, together with Indebtedness6010   incurred by a Restricted Subsidiary that is not a Credit Party pursuant to Section 8.03(g), in the6011   aggregate at any time outstanding the greater of (i) $20,000,000 and (ii) 3.00% of Total Assets;6012   (i) Support Obligations by the Borrower and its Restricted Subsidiaries in6013   respect of Indebtedness otherwise permitted hereunder; provided that Support Obligations by the6014   Credit Parties with respect to Indebtedness of Restricted Subsidiaries that are not Credit Parties is6015   an Investment permitted by Section 8.02;6016   (j) Indebtedness (i) representing deferred compensation to employees of the6017   Borrower or any of its Restricted Subsidiaries incurred in the ordinary course of business6018   (including, for the avoidance of doubt, in connection with the Transactions or any Acquisition6019   permitted hereunder), or (ii) to current or former officers, managers, consultants, directors and6020   employees, and their respective estates, spouses or former spouses to finance the purchase or6021   redemption of Capital Stock or other equity-based awards of the Borrower permitted by6022   Section 8.06;6023   (k) Indebtedness of Restricted Subsidiaries that are not Credit Parties in an6024   aggregate principal amount at any time outstanding not to exceed the greater of (i) $15,000,0006025   and (ii) 2.25% of Total Assets;6026   (l) Treasury Management Obligations and other Indebtedness in respect of6027   netting services, automatic clearinghouse arrangements, overdraft protections, employee credit6028   card programs and other cash management and similar arrangements in the ordinary course of6029   business and any Guaranties thereof;6030   (m) Indebtedness consisting of (i) the financing of insurance premiums or (ii)6031   take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary6032   course of business;6033   (n) obligations in respect of performance, bid, appeal and surety bonds and6034   performance and completion guarantees and similar obligations provided by the Borrower or any6035   of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or6036   similar instruments related thereto, in each case in the ordinary course of business or consistent6037   with past practice;6038   (o) (A) Indebtedness of the Borrower or any Restricted Subsidiary in an6039   aggregate principal amount not to exceed the amount of the net cash proceeds received by the6040   Borrower since the Closing Date from the issuance or sale of Capital Stock of the Borrower or6041    





 







146   55802528_20   cash contributed to the capital of the Borrower (in each case, other than proceeds of Disqualified6042   Stock or sales of Capital Stock to the Borrower or any of its Subsidiaries) as determined in6043   accordance with clauses (a) and (b) of the definition of “Cumulative Equity Credit” to the extent6044   such net cash proceeds have not been applied pursuant to such clauses to make Investments6045   pursuant to Section 8.02, Restricted Payments pursuant to Section 8.06 or to prepay, redeem,6046   purchase, defease or satisfy Indebtedness pursuant to Section 8.12, so long as (i) such6047   Indebtedness is incurred within one year following the receipt by the Borrower of such net cash6048   proceeds, and (ii) such Indebtedness is designated as “Contribution Indebtedness” on the date6049   incurred and (B) any Permitted Refinancing thereof;6050   (p) Indebtedness pursuant to any Plan or owed to any Person providing health,6051   retirement, disability or other employee benefits;6052   (q) (A) Indebtedness in respect of one or more series of senior or subordinated6053   notes or loans (which may be unsecured or secured on a junior lien basis to the Obligations), and,6054   in the case of notes, issued in a public offering, Rule 144A or other private placement or bridge6055   in lieu of the foregoing, in each case, that are issued or made in lieu of Incremental Revolving6056   Commitments and/or Incremental Term Commitments (the “Incremental Equivalent Debt”);6057   provided that (i) the aggregate principal amount of such Incremental Equivalent Debt shall be6058   subject to the limitations set forth under Section 2.18(c)(ii) as if such Incremental Equivalent6059   Debt constituted Incremental Term Loans incurred in compliance therewith; (ii) such6060   Incremental Equivalent Debt shall not be subject to any Guaranty by any Person other than a6061   Credit Party, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect6062   thereof shall not be secured by any Lien on any asset of the Borrower or any Restricted6063   Subsidiary other than any asset constituting Collateral, (iv) no Default or Event of Default shall6064   have occurred and be continuing or would exist immediately after giving effect to such6065   incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other6066   collateral documents relating to such Incremental Equivalent Debt shall be substantially similar6067   to the Collateral Documents (with such differences as are reasonably satisfactory to the6068   Administrative Agent), (vi) (a) if such Incremental Equivalent Debt is secured, then such6069   Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor6070   arrangement satisfactory to the Borrower and the Administrative Agent or (b) if such6071   Incremental Equivalent Debt is unsecured and subordinated to the Obligations, then such6072   Incremental Equivalent Debt shall be subject to a subordination agreement satisfactory to the6073   Borrower and the Administrative Agent, (vii) such Incremental Equivalent Debt shall have a6074   final maturity date which is no earlier than 91 days after the Maturity Date of the Initial Term6075   Loans, (viii) such Incremental Equivalent Debt shall have no scheduled amortization prior to the6076   final scheduled maturity date of the Initial Term Loans, (ix) such Incremental Equivalent Debt6077   shall not be subject to any mandatory redemption or prepayment provisions or rights (except6078   offers to repurchase and prepayment events upon a change of control, asset sale or event of loss6079   and a customary acceleration right after an event of default), in each case prior to the Maturity6080   Date of the Initial Term Loans, (x) such Incremental Equivalent Debt shall (a) have financial6081   maintenance covenants that are not more restrictive than the Financial Covenants or (b) not have6082   any financial maintenance covenants, and (xi) except as otherwise set forth in this clause (g),6083   such Incremental Equivalent Debt shall have terms and conditions (other than with respect to6084   pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to,6085   or (taken as a whole) no more favorable (as reasonably determined by the Borrower in good6086    





 







147   55802528_20   faith) to the lenders or holders providing such Incremental Equivalent Debt, than those6087   applicable to the Initial Term Loans (except for covenants or other provisions applicable only to6088   periods after the Latest Maturity Date at the time of the issuance or incurrence of such6089   Incremental Equivalent Debt) and (B) any Permitted Refinancing thereof;6090   (r) (x) Indebtedness of the Borrower in the form of or more series of senior or6091   subordinated notes of loans (which may be unsecured or secured on a junior lien basis to the6092   Obligations), and, in the case of notes, issued in a public offering, Rule 144A or other private6093   placement in lieu of the foregoing and, in each case, any Permitted Refinancing thereof (the6094   “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace,6095   repurchase, retire or refinance, in whole or in part, any Refinanced Debt; provided that any6096   Refinancing Equivalent Debt: (A) (1) shall not have a Maturity Date prior to the 91 days after6097   the Maturity Date of the Initial Term Loans, (2) if in the form of term loans, shall not have a6098   Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to6099   Maturity of the Refinanced Debt, (3) shall not have scheduled amortization prior to the Maturity6100   Date of the Initial Term Loans, (4) shall not be subject to mandatory redemption, repurchase,6101   prepayment or sinking fund obligations (except with respect to offers to repurchase and6102   prepayment events upon a change of control, asset sale or event of loss and a customary6103   acceleration right after an event of default), in each case prior to the Maturity Date of the Initial6104   Term Loans, (4) shall not be guaranteed by Persons other than Guarantors, (5) (A) if secured,6105   shall be subject to a lien subordination and intercreditor arrangement satisfactory to the Borrower6106   and the Administrative Agent or (B) if unsecured and subordinated to the Obligations, shall be6107   subject to a subordination agreement satisfactory to the Borrower and the Administrative Agent,6108   (6) if secured, shall be subject to security agreements relating to such Refinancing Equivalent6109   Debt that are substantially the same as or more favorable to the Credit Parties than the Collateral6110   Documents (with such differences as are reasonably satisfactory to the Administrative Agent),6111   (7) if secured shall be secured by the Collateral on a junior lien basis with the Obligations under6112   Term Loans and Revolving Credit Loans and shall not be secured by any property or assets of6113   the Borrower or any Restricted Subsidiary other than the Collateral, (8) shall not have a greater6114   principal amount than the principal amount of the Refinanced Debt plus accrued and unpaid6115   interest, fees, premiums (if any) and penalties thereon and reasonable fees, expenses, OID and6116   upfront fees associated with the refinancing, (9) (A) shall have financial maintenance covenants6117   that are not more restrictive than the Financial Covenants or (B) shall not have financial6118   maintenance covenants, and (10) except as otherwise set forth in this clause (f)(ii), shall have6119   terms and conditions (other than with respect to pricing, fees, rate floors and optional6120   prepayment or redemption terms) substantially similar to, or (taken as a whole) no more6121   favorable (as determined by the Borrower in good faith) to the lenders or holders providing such6122   Refinancing Equivalent Debt, than those applicable to the Initial Term Loans (except for6123   covenants or other provisions applicable only to periods after the Latest Maturity Date at the6124   time of the issuance or incurrence of such Refinancing Equivalent Debt) and (B) shall be6125   incurred solely to repay, repurchase, retire or refinance substantially concurrently the Refinanced6126   Debt and (y) any Permitted Refinancing thereof;6127   (s) other Indebtedness in an aggregate principal amount at any time6128   outstanding not to exceed the greater of (i) $22,500,000 and (ii) 3.50% of Total Assets; and6129    





 







148   55802528_20   (t) all premiums (if any), interest (including post-petition interest), fees,6130   expenses, charges and additional or contingent interest on obligations described in clauses (a)6131   through (t) above.6132   For purposes of determining compliance with Section 8.03, in the event that an item of6133   Indebtedness (or any portion thereof) at any time, whether at the time of incurrence meets the6134   criteria of more than one of the categories of permitted Indebtedness described in Section 8.03(a)6135   through (t) above, the Borrower, in its sole discretion, will classify such item of indebtedness (or6136   any portion thereof) in any one or more of the types of Indebtedness described in Section 8.03(a)6137   through (t) and will only be required to include the amount and type of such Indebtedness in such6138   of the above clauses as determined by the Borrower at such time. The Borrower will be entitled6139   to divide and classify an item of Indebtedness in more than one of the types of Indebtedness6140   described in Section 8.03(a) through (t). Notwithstanding the foregoing, Indebtedness incurred6141   (a) under the Credit Documents, any Incremental Commitments, any Incremental Loans, any6142   Refinancing Commitments and any Refinancing Loans shall only be classified as incurred under6143   Section 8.03(a), (b) as Incremental Equivalent Debt shall only be classified as incurred under6144   Section 8.03(q), and (c) as Refinancing Equivalent Debt shall only be classified as incurred6145   under Section 8.03(r).6146   For purposes of determining compliance with any Dollar-denominated restriction on the6147   incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated6148   in a foreign currency shall be calculated based on the relevant currency exchange rate in effect6149   on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the6150   case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace,6151   refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and6152   such extension, replacement, refunding, refinancing, renewal or defeasance would cause the6153   applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency6154   exchange rate in effect on the date of such extension, replacement, refunding, refinancing,6155   renewal or defeasance, such Dollar-denominated restriction shall be deemed not to have been6156   exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the6157   principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed6158   or defeased, plus the aggregate amount of fees, underwriting discounts, premiums (including6159   tender premiums) and other costs and expenses (including OID) incurred in connection with such6160   refinancing.6161   The accrual of interest or the accretion of accreted value shall not be deemed to be an6162   incurrence of Indebtedness for purposes of this Section 8.03.6163   Section 8.04. Mergers and Dissolutions. Enter into a transaction of merger or6164   consolidation; provided that:6165   (a) the Borrower and its Restricted Subsidiaries may merge or consolidate6166   with any Credit Party; provided that (i) if the Borrower is a party to the merger or consolidation,6167   it shall be the surviving entity and (ii) if the Borrower is not a party to the merger or6168   consolidation, then a Credit Party thereto shall be the surviving entity;6169    





 







149   55802528_20   (b) a Restricted Subsidiary of the Borrower that is not a Credit Party may6170   merge or consolidate with any other Subsidiary that is not a Credit Party; or6171   (c) the Borrower and its Restricted Subsidiaries may merge or consolidate6172   with Persons that are not Credit Parties; provided that (i) if the Borrower is a party to the merger6173   or consolidation, it shall be the surviving entity and (ii) if a Restricted Subsidiary of the6174   Borrower that is a Credit Party is a party to the merger or consolidation, either (I) the Restricted6175   Subsidiary that is a Credit Party will be the surviving entity, or (II) such transaction shall be an6176   Investment permitted under Section 8.02;6177   (d) So long as no Default has occurred and is continuing or would result6178   therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the6179   Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or6180   surviving any such merger or consolidation is not the Borrower (any such Person, the6181   “Successor Company”), (A) the Successor Company shall be an entity organized or existing6182   under the Laws of the United States, any state thereof, the District of Columbia or any territory6183   thereof, (B) the Successor Company shall expressly assume all the obligations of the Borrower6184   under this Agreement and the other Credit Documents to which the Borrower is a party pursuant6185   to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent,6186   (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have6187   confirmed that its Guaranty shall apply to the Successor Company’s obligations under the Credit6188   Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall6189   have by a supplement to the Security Agreement and other applicable Collateral Documents6190   confirmed that its obligations thereunder shall apply to the Successor Company’s obligations6191   under the Credit Documents, (E) if requested by the Administrative Agent, each mortgagor of a6192   Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an6193   amendment to or restatement of the applicable Mortgage (or other instrument reasonably6194   satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to6195   the Successor Company’s obligations under the Credit Documents, and (F) the Borrower shall6196   have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel,6197   each stating that such merger or consolidation and such supplement to this Agreement or any6198   Collateral Document comply with this Agreement; provided, further, that if the foregoing are6199   satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this6200   Agreement;6201   (e) any Restricted Subsidiary may Dispose of all or substantially all of its6202   assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted6203   Subsidiary; provided that if the transferor in such a transaction is a Credit Party, then (i) the6204   transferee must be a Credit Party or (ii) to the extent constituting an Investment, such Investment6205   must be an Investment permitted by Section 8.02;6206   (f) Credit Parties (other than the Borrower) may (i) be dissolved or liquidated6207   into another Credit Party or (ii) otherwise have their existence terminated to the extent that the6208   assets of such Credit Party are distributed, upon such termination, to one or more Credit Parties6209   or to a Restricted Subsidiary that is not a Credit Party so long as such transaction shall be an6210   Investment permitted under Section 8.02;6211    





 







150   55802528_20   (g) Restricted Subsidiaries that are not Credit Parties may be dissolved,6212   liquidated or otherwise have their existence terminated; and6213   (h) so long as no Event of Default has occurred and is continuing or would6214   result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation6215   or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 8.05.6216   Section 8.05. Dispositions. Make any Disposition, except:6217   (a) (i) Dispositions between and among Credit Parties, (ii) Dispositions6218   between and among Restricted Subsidiaries that are not Credit Parties and (iii) Dispositions6219   between Credit Parties, on the one hand, and Restricted Subsidiaries that are not Credit Parties,6220   on the other hand, provided that in the case of any disposition by a Credit Party to a Restricted6221   Subsidiary that is not a Credit Party, such Disposition shall be an Investment permitted by6222   Section 8.02;6223   (b) Dispositions by the Borrower or any Restricted Subsidiary; provided that6224   (i) at the time of such Disposition, no Event of Default shall exist or would result from such6225   Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause6226   (b) in any fiscal year shall not exceed an amount equal to ten percent (10%) of Total Assets of6227   the Borrower and its Restricted Subsidiaries as of the last day of the immediately preceding6228   fiscal year, and (iii) with respect to any Disposition for a purchase price in excess of $5,000,000,6229   the consideration for any such Disposition shall be at least 75% cash or Cash Equivalents;6230   provided, however, that for the purposes of this clause (iii), the following shall be deemed to be6231   cash: (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided6232   hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than6233   liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (i)6234   are assumed by the transferee with respect to the applicable Disposition or (ii) are otherwise6235   cancelled or terminated in connection with the transaction with such transferee (other than6236   intercompany debt owed to the Borrower or its Restricted Subsidiaries) and, in each case, for6237   which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all6238   applicable creditors in writing, (B) any securities, notes or other obligations or assets received by6239   the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by6240   the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the6241   cash or Cash Equivalents received) within 180 days following the closing of the applicable6242   Disposition, and (C) aggregate non-cash consideration received by the Borrower or the6243   applicable Restricted Subsidiary having an aggregate fair market value (determined as of the6244   closing of the applicable Disposition for which such non-cash consideration is received) not to6245   exceed the greater of (x) $7,500,000 and (y) 1.25% of Total Assets (net of any non-cash6246   consideration converted into cash and Cash Equivalents) and (ii) such Disposition shall be for at6247   least the fair market value (as determined by the Borrower in good faith) of the assets or property6248   subject to such Disposition;6249   (c) Dispositions consisting of the licensing or sublicensing of intellectual6250   property and licenses, leases or subleases of other property, in each case in the ordinary course of6251   business or Dispositions of intellectual property, in the Borrower’s reasonable business6252    





 







151   55802528_20   judgment, that are not material to the business of the Borrower and its Restricted Subsidiaries,6253   taken as a whole;6254   (d) Dispositions permitted by Section 8.04, that constitute a Lien permitted by6255   Section 8.01, that constitute an Investment permitted by Section 8.02 and that constitute a6256   Restricted Payment permitted by Section 8.06;6257   (e) to the extent allowable under Section 1031 of the Code (or comparable or6258   successor provision), any exchange of like property (excluding any boot thereon permitted by6259   such provision);6260   (f) any swap of assets in exchange for services or other assets in the ordinary6261   course of business of comparable or greater value or usefulness to the business of the Borrower6262   and its Subsidiaries as a whole, as determined in good faith by the management of the Borrower;6263   (g) any sale of Capital Stock in, or Indebtedness or other securities of, an6264   Unrestricted Subsidiary;6265   (h) Dispositions of Investments (including equity interests) in joint ventures to6266   the extent required by, or made pursuant to customary buy/sell arrangements between, the joint6267   venture parties set forth in joint venture arrangements and similar binding arrangements;6268   (i) the lapse or abandonment in the ordinary course of business of any6269   registrations or applications for registration of any immaterial IP Rights;6270   (j) Dispositions of non-core assets acquired in any Acquisition consummated6271   after the Closing Date; provided that the aggregate value of any property Disposed of after any6272   Acquisition shall not exceed 20% of the aggregate consideration for such Acquisition; and6273   (k) Dispositions by any Credit Party to any wholly-owned Restricted6274   Subsidiary of the type described in clauses (d), (h) and (i) of the definition of “Excluded6275   Subsidiary” to the extent consisting of contributions or other Dispositions of Capital Stock in6276   other Subsidiaries of the type described in clauses (d), (h) or (i) of the definition of “Excluded6277   Subsidiary” to such wholly-owned Restricted Subsidiary.6278   To the extent any Collateral is Disposed of as expressly permitted by this Section 8.05 to6279   any Person other than the Borrower or a Credit Party, such Collateral shall be sold free and clear6280   of the Liens created by the Credit Documents, and the Administrative Agent shall be authorized6281   to take any actions deemed appropriate in order to effect the foregoing.6282   Section 8.06. Restricted Payments. Declare or make, directly or indirectly, any6283   Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:6284   (a) Restricted Subsidiaries of the Borrower may pay dividends and make6285   distributions in respect of their Capital Stock ratably to their equity holders;6286    





 







152   55802528_20   (b) the Borrower may declare and make dividend payments or other6287   distributions payable solely in the common stock or other common equity interests of the6288   Borrower;6289   (c) repurchases of Capital Stock in the Borrower or any Restricted Subsidiary6290   of the Borrower deemed to occur upon exercise of stock options or warrants or the settlement or6291   vesting of other equity-based awards if such Capital Stock represents a portion of the exercise6292   price of, or tax withholdings with respect to, such options, warrants or other equity-based6293   awards;6294   (d) the Borrower may purchase, redeem or otherwise acquire shares of its6295   common stock or other common equity interests or warrants or options to acquire any such6296   shares with the proceeds received from the substantially concurrent issue of new shares of its6297   common stock or other common equity interests to the extent such proceeds have not been6298   applied as a utilization of the Cumulative Equity Credit;6299   (e) the Borrower and each Restricted Subsidiary may pay for the repurchase,6300   retirement or other acquisition or retirement for value of Capital Stock or settlement of equity-6301   based awards of such Restricted Subsidiary (or of the Borrower) held by any future, present or6302   former employee, officer, director, manager, consultant or independent contractor (or any6303   spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of6304   any of the foregoing) of such Restricted Subsidiary (or the Borrower) or any of its Subsidiaries,6305   in each case, upon the death, disability, retirement or termination of employment or services, as6306   applicable, of any such Person or pursuant to any equity plan, stock option plan or any other6307   benefit or incentive plan or any agreement (including any stock subscription agreement,6308   shareholder agreement or stockholders’ agreement) with any employee, director, officer,6309   manager, consultant or independent contractor of such Restricted Subsidiary (or the Borrower) or6310   any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments6311   made pursuant to this clause (e) shall not exceed the greater of (x) $5,000,000 and (y) 0.75% of6312   Total Assets determined as of the last day of the immediately preceding fiscal year in any6313   calendar year (with 100% of the unused amounts in any calendar year being carried over to the6314   next two succeeding calendar years); provided, further, that the foregoing amount shall be6315   increased by the Net Cash Proceeds of key man life insurance policies received by the Borrower6316   or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the6317   cash proceeds of such key man life insurance policies;6318   (f) the Borrower or any of the Restricted Subsidiaries may pay cash in lieu of6319   fractional Capital Stock in connection with any dividend, split or combination thereof or any6320   Acquisition;6321   (g) so long as no Event of Default shall have occurred and be continuing at6322   the time, Restricted Payments in an aggregate amount per annum not to exceed an amount equal6323   to 6% of the net proceeds received by (or contributed to) the Borrower and its Restricted6324   Subsidiaries from all Equity Offerings after the Closing Date;6325   (h) so long as no Event of Default shall have occurred and be continuing at6326   the time, Restricted Payments in an aggregate amount not to exceed, together with the aggregate6327    





 







153   55802528_20   amount of all prepayments of Junior Debt made pursuant to Section 8.12(a)(iii), at the time any6328   such Restricted Payment is made, the sum of (x) the greater of (i) $15,000,000 and (ii) 2.25% of6329   Total Assets and (y) the Cumulative Equity Credit;6330   (i) Restricted Payments may be made by the Borrower so long as, at the time6331   any such Restricted Payment is made, the Payment Conditions are satisfied; and6332   (j) to the extent constituting Restricted Payment, the Borrower or any of its6333   Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any6334   provision of Section 8.04 and Section 8.09 (other than Section 8.09(d)).6335   Section 8.07. Change in Nature of Business. Engage in any material line of business6336   substantially different from those lines of business conducted by the Borrower and its Restricted6337   Subsidiaries on the Closing Date (or that would be conducted after giving effect to the6338   Transactions) or any business substantially related, complementary, synergistic, ancillary or6339   incidental thereto (including related, complementary, synergistic, ancillary or incidental6340   technologies) or reasonable extensions thereof.6341   Section 8.08. Change in Fiscal Year. Change its fiscal year (except, on one occasion, to6342   change its fiscal year to a fiscal year ending September 30 or December 31); provided, however,6343   that the Borrower may, upon written notice to the Administrative Agent, change its fiscal year to6344   any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the6345   Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make6346   any adjustments to this Agreement that are necessary to reflect such change in fiscal year.6347   Section 8.09. Transactions with Affiliates. Enter into any transaction of any kind with6348   any Affiliate of the Borrower involving aggregate payments or consideration in excess of6349   $1,000,000 for any individual transaction or series of related transactions, whether or not in the6350   ordinary course of business, other than (a) transactions on fair and reasonable terms substantially6351   as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the6352   Borrower or such Restricted Subsidiary at the time in a comparable arm’s length transaction with6353   a Person other than an Affiliate, (b) transactions amongst the Borrower and its Restricted6354   Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction, (c)6355   payment of reasonable compensation (including reasonable salary, bonus and other reasonable6356   incentive arrangements) and stock option and other equity or incentive award plans and6357   employee benefit plans, practices and arrangements for directors, officers, employees, managers,6358   consultants and independent contractors, (d) directors’ fees and reasonable out of pocket costs to,6359   and indemnities provided on behalf of, directors, officers, employees, consultants and6360   independent contractors of the Borrower and its Restricted Subsidiaries, (e) Restricted Payments6361   permitted pursuant to Section 8.06, (f) Investments permitted by Section 8.02(b), Section 8.02(c),6362   Section 8.02(g), Section 8.02(o), (g) Dispositions permitted by Section 8.05(h), (h) transactions6363   pursuant to agreements, instruments or arrangements in existence on the Closing Date and set6364   forth in Schedule 8.09 or any amendment thereto to the extent such an amendment is not adverse6365   to the Lenders in any material respect, (i) transactions with customers, clients, joint venture6366   partners, suppliers or purchasers or sellers of goods or services, in each case in the ordinary6367   course of business and otherwise in compliance with the terms of this Agreement that are fair to6368   the Borrower and its Restricted Subsidiaries, in the reasonable determination of the Board of6369    





 







154   55802528_20   Directors or the senior management of the Borrower, or are on terms at least as favorable as6370   might reasonably have been obtained at such time from a Person that is not an Affiliate, (j)6371   transactions in which the Borrower or any of the Restricted Subsidiaries, as the case may be,6372   deliver to the Administrative Agent a letter from an independent financial advisor stating that6373   such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of6374   view or meets the requirements of clause (a) of this Section 8.08, (k) payments to or from, and6375   transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a6376   result of Investments by the Borrower and its Restricted Subsidiaries in such joint venture) to the6377   extent otherwise constituting an Investment or Restricted Payment permitted under this6378   Agreement, (l) Indebtedness permitted by Section 8.03(j), and (m) transactions with an Escrow6379   Borrower, including any Escrow Funding Assignment, any Escrow Assumption and the entrance6380   into any agreements related thereto so long as the proceeds of any related Indebtedness of the6381   assets or Capital Stock acquired therewith are promptly contributed or otherwise transferred to6382   the Borrower or a Subsidiary promptly upon the use of such proceeds.6383   Section 8.10. [Reserved].6384   Section 8.11. Financial Covenants.6385   (a) Consolidated Cash Interest Coverage Ratio. Permit the Consolidated6386   Cash Interest Coverage Ratio as of the last day of any Test Period (commencing with the Test6387   Period ending September 30, 2016) to be less than 3.00:1.00.6388   (b) Consolidated Total Net Leverage Ratio. Permit the Consolidated Total6389   Net Leverage Ratio as of the last day of any Test Period (commencing with the Test Period6390   ending September 30, 2016) to be greater than (x) 3.75:1.00 or (y) for any Test Period ending6391   after June 30, 2017, 3.25:1.006392   Section 8.12. Prepayments etc. of Indebtedness.6393   (a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the6394   scheduled maturity thereof in any manner (it being understood that payments of regularly6395   scheduled principal, interest and mandatory prepayments shall be permitted) any Incremental6396   Equivalent Debt, any Refinancing Equivalent Debt, any Ratio Debt or any other Indebtedness for6397   borrowed money of a Credit Party, in each case, that is (x) unsecured or (y) subordinated in right6398   of payment to the Loan Obligations expressly by its terms or to the Lien securing the Collateral6399   expressly by its terms (other than Indebtedness among the Borrower and its Restricted6400   Subsidiaries) to the extent permitted by any applicable subordination provisions (collectively,6401   “Junior Debt”), except (i) any Permitted Refinancing thereof, (ii) the conversion of any such6402   Junior Debt to Capital Stock (other than Disqualified Stock) of the Borrower from the6403   substantially concurrent issuance of new shares of its common stock or other common equity6404   interests, (iii) prepayments, redemptions, purchases, defeasances and other repayments in respect6405   to Junior Debt in an aggregate amount not to exceed, together with the aggregate amount of all6406   Restricted Payments made pursuant to Section 8.06(h), at the time any such prepayment,6407   redemption, purchase, defeasance or other repayment is made, the sum of (x) the greater of (a)6408   $15,000,000 and (b) 2.25% of Total Assets and (y) the Cumulative Equity Credit, and (iv)6409   prepayments, redemptions, purchases, defeasances and other repayments in respect of Junior6410    





 







155   55802528_20   Debt so long as, after giving effect to such prepayments, redemptions, purchases, defeasances6411   and other repayments, the Payment Conditions are satisfied.6412   (b) Amend, modify or change in any manner materially adverse to the6413   interests of the Lenders, as determined in good faith by the Borrower, any term or condition of6414   any Junior Debt having an aggregate outstanding principal amount in excess of $15,000,0006415   (other than as a result of any Permitted Refinancing in respect thereof) without the consent of the6416   Administrative Agent (which consent shall not be unreasonably withheld, conditioned or6417   delayed).6418   Section 8.13. Burdensome Agreements. Enter into, incur or permit to exist any6419   agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the6420   ability of the Borrower or any Credit Party to create, incur or permit to exist any Lien upon any6421   of its property or assets to secure the Obligations or (ii) the ability of any Restricted Subsidiary6422   that is not a Credit Party to pay dividends or other distributions with respect to any of its Capital6423   Stock; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by6424   Law, or by any Credit Document, or with respect to clause (ii) above any document evidencing6425   any Ratio Debt, Incremental Equivalent Debt or Refinancing Equivalent Debt (or any Permitted6426   Refinancing thereof), (B) the foregoing shall not apply to customary provisions in joint venture6427   agreements and other similar agreements applicable to joint ventures constituting Investments6428   permitted hereunder and applicable solely to such joint venture, (C) the foregoing shall not apply6429   to restrictions and conditions imposed on any Restricted Subsidiary that is not a Credit Party by6430   the terms of any Indebtedness of such Restricted Subsidiary that is not a Credit Party permitted6431   to exist or be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or6432   conditions imposed by any agreement relating to secured Indebtedness permitted hereunder if6433   such restrictions or conditions apply only to the property or assets financed by such6434   Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases,6435   licenses, purchase money contracts and other contracts (including joint venture agreements)6436   restricting the assignment, sublease or sublicense thereof, (F) the foregoing shall not apply to6437   restrictions that arise in connection with cash or other deposits imposed by customers under6438   contracts entered into in the ordinary course of business and not prohibited hereunder, (G) the6439   foregoing shall not apply to Contractual Obligations which (x) exist on the Closing Date and (to6440   the extent not otherwise permitted by this Section 8.13) are listed in Schedule 8.13 and (y) to the6441   extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing6442   Indebtedness, are set forth in any agreement evidencing any permitted modification,6443   replacement, renewal, extension or refinancing of such Indebtedness so long as such6444   modification, replacement, renewal, extension or refinancing does not expand the scope of such6445   Contractual Obligation, (H) the foregoing shall not apply to Contractual Obligations which are6446   binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a6447   Restricted Subsidiary of the Borrower, so long as such Contractual Obligations were not entered6448   into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower or6449   entered into for the purpose of creating such prohibition or restrictions, (I) the foregoing shall not6450   apply to Contractual Obligations which arise in connection with cash or other deposits permitted6451   under Sections 8.01, and limited to such cash or deposits, (J) the foregoing shall not apply to6452   Contractual Obligations which comprise restrictions imposed by any agreement relating to6453   secured Indebtedness permitted pursuant to Section 8.03(f), (k) (with respect to clause (i)), (h)6454   and (m)(i) to the extent that such restrictions apply only to the property or assets subject to such6455    





 







156   55802528_20   Indebtedness or, in the case of Section 8.03(h), to the Restricted Subsidiaries incurring or6456   guaranteeing such Indebtedness, (K) the foregoing shall not apply to Contractual Obligations6457   which are customary restrictions that arise in connection with (x) any Lien permitted by Sections6458   8.01(g), (h), (p), (r), (x)(i), (x)(ii), (y) and (z) and relate to the property subject to such Lien or6459   (y) arise in connection with any Disposition permitted by Section 8.04 or 8.05 and relate solely6460   to the assets or Person subject to such Disposition, (L) the foregoing shall not apply to6461   Contractual Obligations which comprise restrictions imposed by any agreement governing6462   Indebtedness entered into on or after the Closing Date and permitted under Section 8.03 that are,6463   taken as a whole, in the good faith judgment of the Borrower, no more restrictive in any material6464   respect with respect to the Borrower or any Restricted Subsidiary than those encumbrances and6465   other restrictions that are in effect on the Closing Date pursuant to agreements and instruments in6466   effect on the Closing Date or, if applicable, on the date on which such Restricted Subsidiary6467   became a Restricted Subsidiary pursuant to agreements and instruments in effect on such date.6468   ARTICLE 96469   EVENTS OF DEFAULT AND REMEDIES6470   Section 9.01. Events of Default. Any of the following shall constitute an Event of6471   Default:6472   (a) Non-Payment. The Borrower or any other Credit Party fails to pay (i)6473   when and as required to be paid herein and in the currency required hereunder, any amount of6474   principal of any Loan or any L/C Obligation, or (ii) within five (5) Business Days after the same6475   becomes due, any interest on any Loan or on any L/C Obligation, any fee due hereunder or any6476   other amount payable hereunder or under any other Credit Document; or6477   (b) Specific Covenants. The Borrower or any other Credit Party fails to6478   perform or observe any term, covenant or agreement contained in any of Sections 7.03(a),6479   7.05(a) (solely with respect to the Borrower), 7.11, 7.15 or Article 8; or6480   (c) Other Defaults. The Borrower or any other Credit Party fails to perform6481   or observe any other covenant or agreement (not specified in subsection (a) or (b) above)6482   contained in any Credit Document on its part to be performed or observed and such failure6483   continues for 30 days after the date upon which written notice thereof is given by the6484   Administrative Agent; or6485   (d) Representations and Warranties. Any representation, warranty,6486   certification or statement of fact made or deemed made by or on behalf of the Borrower or any6487   other Credit Party herein, in any other Credit Document, or in any document delivered in6488   connection herewith or therewith shall be false or misleading in any material respect when made6489   or deemed made; or6490   (e) Cross-Default. The Borrower or any Restricted Subsidiary (A) fails to6491   make any payment when due (whether by scheduled maturity, required prepayment, acceleration,6492   demand, or otherwise, but after giving effect to any applicable grace period) in respect of any6493   Indebtedness (other than Indebtedness hereunder) having an aggregate outstanding principal6494   amount (including amounts owing to all creditors under any combined or syndicated credit6495    





 







157   55802528_20   arrangement) of more than $15,000,000, or (B) fails to observe or perform any other agreement6496   or condition relating to any such Indebtedness or contained in any instrument or agreement6497   evidencing, securing or relating thereto (in each case, after giving effect to any applicable grace6498   period), or any other event occurs (other than, in any case pursuant to this clause (B) with respect6499   to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant6500   to the terms of such Swap Contracts and not as a result of any other default thereunder by any6501   Credit Party), the effect of which default or other event is to cause, or to permit the holder or6502   holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,6503   with the giving of notice if required, such Indebtedness to be demanded or to become due or to6504   be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to6505   repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity6506   but only to the extent that such failure is unremedied and is not waived by the holders of such6507   Indebtedness prior to any termination of the Revolving Credit Commitments or acceleration of6508   the Loans pursuant to Section 9.02; or6509   (f) Insolvency Proceedings, Etc. The Borrower or any Restricted Subsidiary6510   that is a Material Subsidiary institutes or consents to the institution of any proceeding under any6511   Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents6512   to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or6513   similar officer for it or for all or any material part of its property; or any receiver, trustee,6514   custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the6515   application or consent of such Person and the appointment continues undischarged or unstayed6516   for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person6517   or to all or any material part of its property is instituted without the consent of such Person and6518   continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any6519   such proceeding; or6520   (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Restricted6521   Subsidiary that is a Material Subsidiary becomes unable or admits in writing its inability or fails6522   generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or6523   execution or similar process is issued or levied against all or any material part of the property of6524   any such Person and is not released, vacated or fully bonded within 60 days after its issue or6525   levy; or6526   (h) Judgments. There is entered against the Borrower or any Restricted6527   Subsidiary a final judgment or order for the payment of money in an aggregate amount6528   exceeding $15,000,000 (to the extent not covered by independent third-party insurance as to6529   which the insurer does not dispute coverage), and (i) enforcement proceedings are commenced6530   by any creditor upon such judgment or order, or (ii) there is a period of 60 consecutive days6531   during which (1) a stay of enforcement of such judgment, by reason of a pending appeal or6532   otherwise, is not in effect or (2) the same is not discharged, satisfied or vacated; or6533   (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or6534   Multiemployer Plan that has resulted or would reasonably be expected to result in liability of a6535   Credit Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in6536   an aggregate amount which could reasonably be expected to result in a Material Adverse Effect,6537   or (ii) a Credit Party or any ERISA Affiliate fails to pay when due, after the expiration of any6538    





 







158   55802528_20   applicable grace period, any installment payment with respect to its withdrawal liability under6539   Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which could6540   reasonably be expected to result in a Material Adverse Effect; or6541   (j) Invalidity of Credit Documents. Any material provision of any Credit6542   Document, at any time after its execution and delivery and for any reason other than as expressly6543   permitted hereunder or satisfaction in full of all the Obligations, ceases to be in full force and6544   effect; or any Credit Party contests in any manner the validity or enforceability of any Credit6545   Document; or any Credit Party denies that it has any or further liability or obligation under any6546   Credit Document, or purports to revoke, terminate or rescind any Credit Document; or6547   (k) Collateral Documents. (i) Any Collateral Document after delivery thereof6548   pursuant to Section 5.01, 7.11, 7.13 or 7.15 shall for any reason (other than pursuant to the terms6549   hereof or thereof including as a result of a transaction not prohibited under this Agreement) cease6550   to create a valid and perfected Lien, with the priority required by the Collateral Documents on6551   and security interest in any material portion of the Collateral purported to be covered thereby,6552   subject to Liens permitted under Section 8.01, (x) except to the extent that any such perfection or6553   priority is not required pursuant to the Collateral and Guarantee Requirement or results from the6554   failure of the Administrative Agent to maintain possession of certificates actually delivered to it6555   representing securities pledged under the Collateral Documents or to file the original Uniform6556   Commercial Code financing statements provided to it on the Closing Date or to file Uniform6557   Commercial Code continuation statements and (y) except as to Collateral consisting of real6558   property to the extent that such losses are covered by a lender’s title insurance policy and such6559   insurer has not denied coverage or (ii) any Lien created or purported to be created by the6560   Collateral Documents shall cease to have the lien priority established or purported to be6561   established by the applicable intercreditor agreement; or6562   (l) Change of Control. There occurs any Change of Control.6563   Section 9.02. Remedies Upon Event of Default. If any Event of Default occurs and is6564   continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the6565   Required Lenders, take any or all of the following actions:6566   (a) declare the Commitments of the Lenders to make Loans and the obligation6567   of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such6568   Commitments and obligation shall be terminated;6569   (b) declare the unpaid principal amount of all outstanding Loans, all interest6570   accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any6571   other Credit Document to be immediately due and payable, without presentment, demand,6572   protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;6573   (c) require that the Borrower Cash Collateralize the L/C Obligations (in an6574   amount equal to 103% of the then Outstanding Amount thereof); and6575   (d) exercise on behalf of itself and the Lenders all rights and remedies6576   available to it or to the Lenders under the Credit Documents or applicable Law; provided that6577   upon the occurrence of an Event of Default under Section 9.01(f), the obligation of each Lender6578    





 







159   55802528_20   to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall6579   automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and6580   other amounts as aforesaid shall automatically become due and payable, and the obligation of the6581   Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become6582   effective, in each case without further act of the Administrative Agent or any Lender.6583   Section 9.03. Application of Funds. After the exercise of remedies provided for in6584   Section 9.02 (or after the Loans have automatically become immediately due and payable and6585   the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the6586   proviso to Section 9.02(d)), any amounts received on account of the Obligations shall be applied6587   by the Administrative Agent in the following order:6588   First, to payment of that portion of the Obligations constituting fees, indemnities,6589   expenses and other amounts (including reasonable attorneys’ fees and disbursements and6590   amounts payable under Article 3) payable to the Administrative Agent in its capacity as such;6591   Second, to payment of that portion of the Obligations constituting fees, indemnities and6592   other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders6593   (including reasonable attorneys’ fees and disbursements and amounts payable under Article 3),6594   ratably among the Lenders in proportion to the amounts described in this clause Second payable6595   to them;6596   Third, to payment of that portion of the Obligations constituting accrued and unpaid6597   Letter of Credit Fees, interest on the Loans and L/C Borrowings, ratably among the Lenders and6598   the L/C Issuer in proportion to the respective amounts described in this clause Third payable to6599   them;6600   Fourth, to (i) payment of that portion of the Obligations constituting unpaid principal of6601   the Loans, L/C Borrowings and other Obligations, (ii) payment of fees, premiums, scheduled6602   periodic payments, breakage, termination and any interest accrued thereon or other amounts6603   owing in respect of any Swap Contract between the Borrower and any of its Restricted6604   Subsidiaries and any Lender, or any Affiliate of a Lender, to the extent that such Swap Contract6605   is permitted hereunder, (iii) payments of amounts due under any Treasury Management6606   Agreement between the Borrower or any of its Restricted Subsidiaries and any Lender, or any6607   Affiliate of a Lender and (iv) the Administrative Agent for the account of the L/C Issuer, to Cash6608   Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn amount of6609   Letters of Credit, ratably among such parties in proportion to the respective amounts described in6610   this clause Fourth payable to them;6611   Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to6612   the Borrower or as otherwise required by Law; provided that, subject to Section 2.03, amounts6613   used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause6614   Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If6615   any amount remains on deposit as Cash Collateral after all Letters of Credit have either been6616   fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any,6617   in the order set forth above, and if not so applied shall be returned to the Borrower.6618    





 







160   55802528_20   ARTICLE 106619   ADMINISTRATIVE AGENT6620   Section 10.01. Appointment and Authorization of Administrative Agent.6621   (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints (i)6622   Bank of America to act on its behalf as the Administrative Agent and Collateral Agent hereunder6623   and under the other Credit Documents and (ii) authorizes the Administrative Agent to take such6624   actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by6625   the terms hereof or thereof, together with such actions and powers as are reasonably incidental6626   thereto. The provisions of this Article 10 (other than Section 10.06 (solely with respect to the6627   removal and consent/consultation rights set forth therein) and Section 10.10) are solely for the6628   benefit of the Administrative Agent, the Lenders and the L/C Issuer, and the Credit Parties shall6629   not have rights as a third party beneficiary of any of such provisions.6630   (b) Each Lender hereby irrevocably appoints, designates and authorizes the6631   Collateral Agent to take such action on its behalf under the provisions of this Credit Agreement6632   and each other Credit Document and to exercise such powers and perform such duties as are6633   expressly delegated to it by the terms of this Credit Agreement or any other Credit Document,6634   together with such powers as are reasonably incidental thereto. In connection herewith, the6635   Administrative Agent, as Collateral Agent, and any co-agents, sub-agents and attorneys-in-fact6636   appointed by the Administrative Agent pursuant to Section 10.05 for purposes of holding or6637   enforcing any Lien on the Collateral (or any portion thereof) granted under the Credit6638   Documents, or for exercising any rights and remedies thereunder at the direction of the6639   Administrative Agent, shall be entitled to the benefits of all provisions of this Article 10 and6640   Article 11 (including Section 11.04, as though such co-agents, sub-agents and attorneys-in-fact6641   were the Collateral Agent under the Credit Documents) as if set forth in full herein with respect6642   thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in any6643   other Credit Document, the Collateral Agent shall not have any duties or responsibilities, except6644   those expressly set forth herein or therein, nor shall the Collateral Agent have or be deemed to6645   have any fiduciary relationship with any Lender or participant, and no implied covenants,6646   functions, responsibilities, duties, obligations or liabilities shall be read into this Credit6647   Agreement or any other Credit Document or otherwise exist against the Collateral Agent.6648   Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and6649   in the other Credit Documents with reference to the Collateral Agent is not intended to connote6650   any fiduciary or other implied (or express) obligations arising under agency doctrine of any6651   applicable Law. Instead, such term is used merely as a matter of market custom, and is intended6652   to create or reflect only an administrative relationship between independent contracting parties.6653   The Collateral Agent shall act on behalf of the Lenders with respect to the Collateral and the6654   Credit Documents, and the Collateral Agent shall have all of the benefits and immunities (i)6655   provided to the Administrative Agent under the Credit Documents with respect to any acts taken6656   or omissions suffered by the Collateral Agent in connection with any Collateral or the Collateral6657   Documents as fully as if the term “Administrative Agent” as used in such Credit Documents6658   included the Collateral Agent with respect to such acts or omissions, and (ii) as additionally6659   provided herein or in the other Credit Documents with respect to the Collateral Agent.6660    





 







161   55802528_20   Section 10.02. Rights as a Lender. The Person serving as the Administrative Agent6661   hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender6662   and may exercise the same as though it were not the Administrative Agent and the term “Lender”6663   or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,6664   include the Person serving as the Administrative Agent hereunder in its individual capacity.6665   Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as6666   the financial advisor or in any other advisory capacity for and generally engage in any kind of6667   business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were6668   not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.6669   Section 10.03. Exculpatory Provisions. The Administrative Agent shall not have any6670   duties or obligations except those expressly set forth herein and in the other Credit Documents,6671   and its duties hereunder shall be administrative in nature. Without limiting the generality of the6672   foregoing, the Administrative Agent:6673   (a) shall not be subject to any fiduciary or other implied duties, regardless of6674   whether a Default or Event of Default has occurred and is continuing;6675   (b) shall not have any duty to take any discretionary action or exercise any6676   discretionary powers, except discretionary rights and powers expressly contemplated hereby or6677   by the other Credit Documents that the Administrative Agent is required to exercise as directed6678   in writing by the Required Lenders (or such other number or percentage of the Lenders as shall6679   be expressly provided for herein or in the other Credit Documents); provided that the6680   Administrative Agent shall not be required to take any action that, in its opinion or the opinion of6681   its counsel, may expose the Administrative Agent to liability or that is contrary to any Credit6682   Document or applicable Law, including for the avoidance of doubt any action that may be in6683   violation of the automatic stay under any Debtor Relief Law or that may affect a forfeiture,6684   modification or termination of property of a Defaulting Lender in violation of any Debtor Relief6685   Law;6686   (c) shall not, except as expressly set forth herein and in the other Credit6687   Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any6688   information relating to the Borrower or any of its Affiliates that is communicated to or obtained6689   by the Person serving as the Administrative Agent or any of its Affiliates in any capacity; and6690   (d) shall not be responsible or have any liability for, or have any duty to6691   ascertain, inquire into, monitor the list or identities of, or enforce, compliance with the provisions6692   hereof relating to Disqualified Institutions.6693   Without limiting the generality of the foregoing, the Administrative Agent shall not (x)6694   be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or6695   prospective Lender or Participant is a Disqualified Institution or (y) have any liability with6696   respect to or arising out of any assignment or participation of Loans, or disclosure of confidential6697   information, to any Disqualified Institution.6698   The Administrative Agent shall not be liable for any action taken or not taken by it (i)6699   with the consent or at the request of the Required Lenders (or such other number or percentage6700    





 







162   55802528_20   of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith6701   shall be necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the6702   absence of its own gross negligence, bad faith or willful misconduct as determined by a court of6703   competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be6704   deemed not to have knowledge of any Default or Event of Default unless and until notice6705   describing such Default is given to the Administrative Agent in writing by the Borrower, a6706   Lender or the L/C Issuer.6707   The Administrative Agent shall not be responsible for or have any duty to ascertain or6708   inquire into (1) any statement, warranty or representation made in or in connection with this6709   Credit Agreement or any other Credit Document, (2) the contents of any certificate, report or6710   other document delivered hereunder or thereunder or in connection herewith or therewith, (3) the6711   performance or observance of any of the covenants, agreements or other terms or conditions set6712   forth herein or therein or the occurrence of any Default or Event of Default, (4) the validity,6713   enforceability, effectiveness or genuineness of this Credit Agreement, any other Credit6714   Document or any other agreement, instrument or document, or the creation, perfection or priority6715   of any Lien purported to be created by the Collateral Documents, (5) the value or sufficiency of6716   any Collateral, or (6) the satisfaction of any condition set forth in Article 5 or elsewhere herein,6717   other than to confirm receipt of items expressly required to be delivered to the Administrative6718   Agent.6719   Section 10.04. Reliance by Administrative Agent. The Administrative Agent shall be6720   entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,6721   certificate, consent, statement, instrument, document or other writing (including any electronic6722   message, Internet or intranet website posting or other distribution) believed by it to be genuine6723   and to have been signed, sent or otherwise authenticated by the proper Person. The6724   Administrative Agent also may rely upon any statement made to it orally or by telephone and6725   believed by it to have been made by the proper Person, and shall not incur any liability for6726   relying thereon. In determining compliance with any condition hereunder to the making of a6727   Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must6728   be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may6729   presume that such condition is reasonable satisfactory to such Lender or the L/C Issuer unless the6730   Administrative Agent shall have received notice to the contrary from such Lender or the L/C6731   Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The6732   Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),6733   independent accountants and other experts selected by it, and shall not be liable for any action6734   taken or not taken by it in accordance with the advice of any such counsel, accountants or6735   experts.6736   Section 10.05. Delegation of Duties. The Administrative Agent may perform any and all6737   of its duties and exercise its rights and powers hereunder or under any other Credit Document by6738   or through any one or more sub-agents appointed by the Administrative Agent; provided,6739   however, that any such sub-agent receiving payments from the Credit Parties shall be a “U.S.6740   person” and a “financial institution” within the meaning of Treasury Regulations 1.1441-1. The6741   Administrative Agent and any such sub-agent may perform any and all of its duties and exercise6742   its rights and powers by or through their respective Related Parties. The exculpatory provisions6743   of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative6744    





 







163   55802528_20   Agent and any such sub-agent, and shall apply to their respective activities in connection with6745   the syndication of the credit facilities provided for herein as well as activities as Administrative6746   Agent.6747   Section 10.06. Resignation of the Administrative Agent. The Administrative Agent may6748   at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. If the6749   Administrative Agent is subject to an Agent-Related Distress Event, the Required Lenders may6750   remove the Administrative Agent upon ten (10) days’ notice. Upon receipt of any such notice of6751   resignation or upon such removal of the Administrative Agent, the Required Lenders shall have6752   the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with6753   an office in the United States, or an Affiliate of any such bank with an office in the United6754   States; provided that such successor shall be a “U.S. person” and a “financial institution” within6755   the meaning of Treasury Regulations Section 1.1441-1. If no such successor shall have been so6756   appointed by the Required Lenders and shall have accepted such appointment within 30 days6757   after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall6758   be agreed to by the Required Lenders) (the “Resignation Effective Date”)), then the retiring6759   Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C6760   Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above6761   subject to the consultation rights of the Borrower in connection with such appointment. Whether6762   or not a successor has been appointed, such resignation shall become effective in accordance6763   with such notice on the Resignation Effective Date.6764   Commencing on the Resignation Effective Date (1) the retiring Administrative Agent6765   shall be discharged from its duties and obligations hereunder and under the other Credit6766   Documents (except that in the case of any collateral security held by the Administrative Agent6767   on behalf of the Lenders or the L/C Issuer under any of the Credit Documents, the retiring or6768   removed Administrative Agent shall continue to hold such collateral security until such time as a6769   successor Administrative Agent is appointed) and (2) all payments, communications and6770   determinations provided to be made by, to or through the Administrative Agent shall instead be6771   made by or to each Lender and the L/C Issuer directly, until such time, if any, as the Required6772   Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon6773   the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor6774   shall succeed to and become vested with all of the rights, powers, privileges and duties of the6775   retiring or removed Administrative Agent, and the retiring or removed Administrative Agent6776   shall be discharged from all of its duties and obligations hereunder or under the other Credit6777   Documents (if not already discharged therefrom as provided above in this Section). The fees6778   payable by the Borrower to a successor Administrative Agent shall be the same as those payable6779   to its predecessor unless otherwise agreed to between the Borrower and such successor. After6780   the retiring Administrative Agent’s resignation or the removed Administrative Agent’s removal6781   hereunder and under the other Credit Documents, the provisions of this Article and Section 11.046782   shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-6783   agents and their respective Related Parties in respect of any actions taken or omitted to be taken6784   by any of them while the retiring or removed Administrative Agent was acting as Administrative6785   Agent.6786   Any resignation by or removal of Bank of America as Administrative Agent pursuant to6787   this Section shall also constitute its resignation or removal as the Collateral Agent, the L/C Issuer6788    





 







164   55802528_20   and the Swingline Lender. Upon the acceptance of a successor’s appointment as Administrative6789   Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights,6790   powers, privileges and duties of the retiring Collateral Agent, L/C Issuer and Swingline Lender,6791   (ii) the retiring Collateral Agent, L/C Issuer and Swingline Lender shall be discharged from all of6792   their respective duties and obligations hereunder or under the other Credit Documents, and (iii)6793   the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,6794   outstanding at the time of such succession or make other arrangements reasonable satisfactory to6795   the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with6796   respect to such Letters of Credit.6797   Section 10.07. Non-Reliance on Administrative Agent and Other Lenders. Each Lender6798   and the L/C Issuer acknowledges that it has, independently and without reliance upon the6799   Administrative Agent or any other Lender or any of their Related Parties and based on such6800   documents and information as it has deemed appropriate, made its own credit analysis and6801   decision to enter into this Credit Agreement. Each Lender and the L/C Issuer also acknowledges6802   that it will, independently and without reliance upon the Administrative Agent or any other6803   Lender or any of their Related Parties and based on such documents and information as it shall6804   from time to time deem appropriate, continue to make its own decisions in taking or not taking6805   action under or based upon this Credit Agreement, any other Credit Document or any related6806   agreement or any document furnished hereunder or thereunder.6807   Section 10.08. No Other Duties. Anything herein to the contrary notwithstanding, none6808   of the Arrangers, book managers or syndication or documentation agents listed on the cover page6809   hereof shall have any powers, duties or responsibilities under this Credit Agreement or any of the6810   other Credit Documents, except in its capacity, as applicable, as the Administrative Agent, a6811   Lender or the L/C Issuer hereunder.6812   Section 10.09. Administrative Agent May File Proofs of Claim; Credit Bidding. In case6813   of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding6814   relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of6815   any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration6816   or otherwise and irrespective of whether the Administrative Agent shall have made any demand6817   on the Borrower) shall be entitled and empowered (but not obligated), by intervention in such6818   proceeding or otherwise:6819   (a) to file and prove a claim for the whole amount of the principal and interest6820   owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than6821   obligations under Swap Contracts or Treasury Management Agreements to which the6822   Administrative Agent is not a party) that are owing and unpaid and to file such other documents6823   as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and6824   the Administrative Agent (including any claim for the reasonable compensation, expenses,6825   disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and6826   their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the6827   Administrative Agent under Sections 2.09 and 11.04) allowed in such judicial proceeding; and6828   (b) to collect and receive any monies or other property payable or deliverable6829   on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee,6830    





 







165   55802528_20   liquidator, sequestrator or other similar official in any such judicial proceeding is hereby6831   authorized by each Lender and the L/C Issuer to make such payments to the Administrative6832   Agent and, in the event that the Administrative Agent shall consent to the making of such6833   payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any6834   amount due for the reasonable compensation, expenses, disbursements and advances of the6835   Administrative Agent and its agents and counsel, and any other amounts due to the6836   Administrative Agent under Sections 2.09 and 11.04.6837   Nothing contained herein shall be deemed to authorize the Administrative Agent to6838   authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of6839   reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of6840   any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the6841   claim of any Lender in any such proceeding.6842   The Secured Parties hereby irrevocably authorize the Administrative Agent, at the6843   direction of the Required Lenders, to credit bid all or any portion of the Secured Obligations6844   (including accepting some or all of the Collateral in satisfaction of some or all of the Secured6845   Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase6846   (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a)6847   at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States,6848   including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any6849   similar Laws in any other jurisdictions to which a Credit Party is subject, (b) at any other sale or6850   foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the6851   direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance6852   with any applicable Law. In connection with any such credit bid and purchase, the Secured6853   Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a6854   ratable basis (with Secured Obligations with respect to contingent or unliquidated claims6855   receiving contingent interests in the acquired assets on a ratable basis that would vest upon the6856   liquidation of such claims in an amount proportional to the liquidated portion of the contingent6857   claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in6858   the Capital Stock or debt instruments of the acquisition vehicle or vehicles that are used to6859   consummate such purchase). In connection with any such bid (i) the Administrative Agent shall6860   be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents6861   providing for the governance of the acquisition vehicle or vehicles (provided that any actions by6862   the Administrative Agent with respect to such acquisition vehicle or vehicles, including any6863   disposition of the assets or Capital Stock thereof shall be governed, directly or indirectly, by the6864   vote of the Required Lenders, irrespective of the termination of this Agreement and without6865   giving effect to the limitations on actions by the Required Lenders contained in clauses (a)6866   through (e) of Section 11.01 of this Agreement, (iii) the Administrative Agent shall be authorized6867   to assign the relevant Secured Obligations to any such acquisition vehicle pro rata by the Lenders,6868   as a result of which each of the Lenders shall be deemed to have received a pro rata portion of6869   any Capital Stock and/or debt instruments issued by such an acquisition vehicle on account of6870   the assignment of the Secured Obligations to be credit bid, all without the need for any Secured6871   Party or acquisition vehicle to take any further action, and (iv) to the extent that Secured6872   Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any6873   reason (as a result of another bid being higher or better, because the amount of Secured6874   Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the6875    





 







166   55802528_20   acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to6876   the Lenders pro rata and the Capital Stock and/or debt instruments issued by any acquisition6877   vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle6878   shall automatically be cancelled, without the need for any Secured Party or any acquisition6879   vehicle to take any further action.6880   Section 10.10. Collateral and Guaranty Matters. Each of the Lenders and the L/C Issuer6881   irrevocably authorize the Administrative Agent and the Collateral Agent:6882   (a) to automatically release any Lien on any property granted to or held by the6883   Collateral Agent under any Credit Document (i) upon termination of the Aggregate6884   Commitments and payment in full of all Obligations (other than (i) contingent indemnification6885   obligations as to which no claim has been asserted and (ii) Obligations described in clauses (b)6886   and (c) of the definition thereof) and the expiration or termination of all Letters of Credit (other6887   than Letters of Credit that have been Cash Collateralized or back-stopped by a letter of credit in6888   form, amount and substance reasonably satisfactory to the Administrative Agent and the L/C6889   Issuer or a deemed reissuance under another facility or as to which other arrangements6890   reasonable satisfactory to the Administrative Agent and the L/C Issuer shall have been made),6891   (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in6892   connection with any sale or other disposition permitted hereunder or under any other Credit6893   Document to a Person that is not a Credit Party, (iii) subject to Section 11.01, if approved,6894   authorized or ratified in writing by the Required Lenders, (iv) if the property subject to such Lien6895   is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty6896   pursuant to subsection (c) below or (v) if such property becomes Excluded Property;6897   (b) to subordinate any Lien on any property granted to or held by the6898   Collateral Agent under any Credit Document to the holder of any Lien on such property that is6899   permitted by Section 8.01(k); and6900   (c) to release any Guarantor from its obligations under any Guaranty pursuant6901   to Section 4.09.6902   Upon request by the Administrative Agent or the Collateral Agent at any time, the6903   Required Lenders will confirm in writing the authority of the Collateral Agent to release or6904   subordinate its interest in particular property and of the Administrative Agent to release any6905   Guarantor from its obligations hereunder pursuant to this Section 10.10. In each case as6906   specified in this Section 10.10, the Administrative Agent and the Collateral Agent will (and each6907   Lender irrevocably authorizes the Administrative Agent and the Collateral Agent to), at the6908   Borrower’s expense, execute and deliver to the applicable Credit Party such documents as such6909   Credit Party may reasonably request to evidence the release of such item of Collateral from the6910   assignment and security interest granted under the Collateral Documents or to subordinate its6911   interest in such item, or to evidence the release of such Guarantor from its obligations under the6912   Guaranty, in each case in accordance with the terms of the Credit Documents and this6913   Section 10.10.6914   Section 10.11. Swap Contracts and Treasury Management Agreements. No Lender or6915   any Affiliate of a Lender that is party to any Swap Contract or any Treasury Management6916    





 







167   55802528_20   Agreement permitted hereunder that obtains the benefits of Section 9.03 or any Collateral by6917   virtue of the provisions hereof or of any other Credit Document shall have any right to notice of6918   any action or to consent to, direct or object to any action hereunder or under any other Credit6919   Document or otherwise in respect of the Collateral (including the release or impairment of any6920   Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly6921   provided in the Credit Documents. Notwithstanding any other provision of this Article 10 to the6922   contrary, the Administrative Agent shall not be required to verify the payment of, or that other6923   reasonable satisfactory arrangements have been made with respect to, Obligations arising under6924   Swap Contracts and Treasury Management Agreements unless the Administrative Agent has6925   received written notice of such Obligations, together with such supporting documentation as the6926   Administrative Agent may request, from the applicable Lender or Affiliate of a Lender that is6927   party to such Swap Contract or such Treasury Management Agreement, as the case may be.6928   ARTICLE 116929   MISCELLANEOUS6930   Section 11.01. Amendments, Etc. Except as expressly provided in, Section 2.18, 2.19 and6931   2.20 and herein below, no amendment or waiver of, or any consent to deviation from, any6932   provision of this Credit Agreement or any other Credit Document shall be effective unless in6933   writing and signed by the Required Lenders (or by the Administrative Agent on behalf of the6934   Required Lenders upon receipt of a consent and direction letter from the Required Lenders) and6935   the Borrower and other Credit Parties, as the case may be, and acknowledged by the6936   Administrative Agent in its role as such (such acknowledgment not to be unreasonably withheld,6937   delayed or conditioned), and each such amendment, waiver or consent shall be effective only in6938   the specific instance and for the specific purpose for which it is given; provided that:6939   (a) no such amendment, waiver or consent (however characterized) shall:6940   (i) extend or increase the Commitment of any Lender (or reinstate any6941   Commitment terminated pursuant to Section 9.02) (it being understood and6942   agreed that amendment or waiver of any condition precedent set forth in Section6943   5.02 or of any Default or Event of Default shall not be considered an extension or6944   increase in Commitments for purposes hereof) without the written consent of such6945   Lender;6946   (ii) waive non-payment or postpone any date fixed by this Credit6947   Agreement or any other Credit Document for any payment (excluding mandatory6948   prepayments) of principal, interest, fees or other amount due to the Lenders (or6949   any of them) hereunder or under any other Credit Document without the written6950   consent of each Lender directly and adversely affected thereby;6951   (iii) reduce the principal of, or the rate of interest specified herein on,6952   any Loan or L/C Borrowing (it being understood that any change to the definition6953   of “Consolidated Total Net Leverage Ratio” or in the component definitions6954   thereof shall not constitute a reduction in any rate of interest), or any fees or other6955   amounts payable hereunder or under any other Credit Document, in each case6956   without the written consent of each Lender directly and adversely affected6957    





 







168   55802528_20   thereby; provided that only (A) the consent of the Required Lenders shall be6958   necessary to amend the definition of “Default Rate,” (B) the consent of the6959   applicable Required Facility Lenders shall be necessary to waive any obligation6960   of the Borrower to pay interest at the Default Rate with respect to Loans under6961   any Facility, and (C) the consent of the Required Revolving Credit Lenders shall6962   be necessary to waive any obligation of the Borrower to pay Letter of Credit Fees6963   at the Default Rate;6964   (iv) change any provision of this Section 11.01(a) or the definitions of6965   “Aggregate Commitment Percentage,” “Required Lenders” or any other provision6966   hereof specifying the number or percentage of Lenders required to amend, waive6967   or otherwise modify any rights hereunder or make any determination or grant any6968   consent hereunder without the written consent of each Lender directly and6969   adversely affected thereby; provided that the definitions of “Required Revolving6970   Credit Lenders,” and “Required Term Lenders,” may only be amended with the6971   written consent of each Lender under the applicable Facility;6972   (v) release all or substantially all of the Guarantors from their6973   obligations under the Credit Documents (other than as provided herein or as6974   appropriate in connection with transactions permitted hereunder) without the6975   written consent of each Lender;6976   (vi) except in connection with a transaction permitted under Section6977   8.04 or Section 8.05 or as permitted by Section 10.10, release all or substantially6978   all of the Collateral without the written consent of each Lender;6979   (vii) change Section 2.12 or Section 9.03 in a manner that would alter6980   the pro rata sharing of amounts required thereby without the written consent of6981   each Lender directly and adversely affected thereby;6982   (viii) (a) waive any condition set forth in Section 5.02 as to any Credit6983   Extension under one or more Classes of Revolving Credit Commitments or (b)6984   amend, waive or otherwise modify any term or provision which directly and6985   adversely affects Lenders under one or more Classes of Revolving Credit6986   Commitments and does not adversely affect Lenders under any other Class, in6987   each case, without the written consent of the Required Revolving Credit Lenders6988   under such applicable Class or Classes of Revolving Credit Commitments (and in6989   the case of multiple Classes which are affected, such Required Revolving Credit6990   Lenders shall consent together as one Class) (it being understood that any6991   amendment to the conditions of effectiveness of Incremental Commitments set6992   forth in Section 2.18 shall be subject to clause (ix) below); provided, however,6993   that the waivers described in this clause (viii) shall not require the consent of any6994   Lenders other than (A) the Required Revolving Credit Lenders under such Class6995   or Classes and (B) in the case of any waiver that otherwise would be subject to6996   clause (i), (ii), (iii), (iv) or (v) above, each Lender or each directly and adversely6997   affected Lender (as specified in clause (i), (ii), (iii), (iv) or (v) above) under the6998   applicable Class or Classes of Revolving Credit Commitments;6999    





 







169   55802528_20   (ix) amend, waive or otherwise modify any term or provision7000   (including the availability and conditions to funding under Section 2.18 with7001   respect to Incremental Term Loans and Incremental Revolving Commitments and7002   the rate of interest applicable thereto) which directly affects Lenders of one or7003   more Incremental Term Loans or Incremental Revolving Commitments (including7004   Loans extended under such Commitments) and does not adversely affect Lenders7005   under any other Class, in each case, without the written consent of the Required7006   Facility Lenders under such applicable Class of Incremental Term Loans or7007   Incremental Revolving Commitments; provided, however, that the waivers7008   described in this clause (ix) shall not require the consent of any Lenders other7009   than (A) the Required Facility Lenders under such applicable Class of7010   Incremental Term Loans or Incremental Revolving Commitments and (B) in the7011   case of any waiver that otherwise would be subject to clause (i), (ii), (iii), (iv) or7012   (v) above, each Lender, each directly affected Lender or each directly and7013   adversely affected Lender (as specified in clause (i), (ii), (iii), (iv) or (v) above)7014   under the applicable Class or Classes of Incremental Term Loans or Incremental7015   Revolving Commitments (including Loans extended under such Commitments);7016   (b) unless also consented to in writing by the L/C Issuer, no such amendment,7017   waiver or consent shall affect the rights or duties of the L/C Issuer under this Credit Agreement7018   or any Issuer Document relating to any Letter of Credit issued or to be issued by it or the7019   definition of “Alternative Currency”;7020   (c) unless also consented to in writing by the Swingline Lender, no such7021   amendment, waiver or consent shall affect the rights or duties of the Swingline Lender under this7022   Credit Agreement;7023   (d) unless also consented to in writing by the Administrative Agent, no such7024   amendment, waiver or consent shall affect the rights or duties of the Administrative Agent under7025   this Credit Agreement or any other Credit Document; and7026   (e) unless also consented to in writing by the Collateral Agent, no such7027   amendment, waiver or consent shall affect the rights or duties of the Collateral Agent under this7028   Credit Agreement or any other Credit Document;7029   provided that notwithstanding anything to the contrary contained herein, (1) no Defaulting7030   Lender shall have any right to approve or disapprove any amendment, waiver or consent7031   hereunder (any amendment, waiver or consent which by its terms requires the consent of all7032   Lenders or each affected Lender may be effected with the consent of the applicable Lenders7033   other than Defaulting Lenders), except that (a) the Revolving Credit Commitment of such7034   Defaulting Lender may not be increased or extended without the consent of such Defaulting7035   Lender and (b) any waiver, amendment or modification requiring the consent of all Lenders or7036   each affected Lender that by its terms affects any Defaulting Lender more adversely than other7037   affected Lenders shall require the consent of such Defaulting Lender, (2) each Lender is entitled7038   to vote as such Lender sees fit on any bankruptcy or insolvency reorganization plan that affects7039   the Loans, and (3) each Lender acknowledges that the provisions of Section 1126(c) of the7040   Bankruptcy Code supersede the unanimous consent provisions set forth herein. Notwithstanding7041    





 







170   55802528_20   anything to the contrary herein, this Agreement may be amended (or amended and restated) with7042   the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to7043   add one or more additional credit facilities to this Agreement and to permit the extensions of7044   credit from time to time outstanding thereunder and the accrued interest and fees in respect7045   thereof to share ratably in the benefits of this Agreement and the other Credit Documents with7046   the Term Loans, Revolving Credit Loans, Swingline Loans and L/C Obligations and the accrued7047   interest and fees in respect thereof and (b) to include appropriately the Lenders holding such7048   credit facilities in any determination of the Required Lenders.7049   In addition, notwithstanding the foregoing, this Agreement may be amended with the7050   written consent of the Administrative Agent, the Borrower and the Lenders providing the7051   Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term7052   Loans of any Class (“Replaced Term Loans”) with replacement term loans (“Replacement7053   Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement7054   Term Loans shall not exceed the aggregate principal amount of such Replaced Term Loans, plus7055   accrued interest, fees, premiums (if any) and penalties thereon and reasonable fees and expenses7056   associated with such Replacement Term Loans, (b) the all-in yield with respect to such7057   Replacement Term Loans (or similar interest rate spread applicable to such Replacement Term7058   Loans) shall not be higher than the all-in yield for such Refinanced Debt (or similar interest rate7059   spread applicable to such Refinanced Debt) immediately prior to such refinancing, (c) the7060   Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than7061   the Weighted Average Life to Maturity of such Replaced Term Loans at the time of such7062   refinancing (except by virtue of amortization or prepayment of the Replaced Term Loans prior to7063   the time of such incurrence) and (d) all other terms applicable to such Replacement Term Loans7064   shall be substantially identical to, or less favorable to the Lenders providing such Replacement7065   Term Loans than, those applicable to such Replaced Term Loans, except to the extent necessary7066   to provide for covenants and other terms applicable to any period after the Latest Maturity Date7067   of the Term Loans in effect immediately prior to such refinancing. Each amendment to this7068   Agreement providing for Replacement Term Loans may, without the consent of any other7069   Lenders, effect such amendments to this Agreement and the other Credit Documents as may be7070   necessary or appropriate, in the opinion of the Administrative Agent and the Borrower to effect7071   the provisions of this paragraph, and for the avoidance of doubt, this paragraph shall supersede7072   any other provisions in this Section 11.01 to the contrary.7073   If the Administrative Agent and the Borrower shall have jointly identified an obvious7074   error (including, but not limited to, an incorrect cross-reference) or any error or omission of a7075   technical or immaterial nature, in each case, in any provision of this Agreement or any other7076   Credit Document (including, for the avoidance of doubt, any exhibit, schedule or other7077   attachment to any Credit Document), then the Administrative Agent (acting in its sole discretion)7078   and the Borrower or any other relevant Credit Party shall be permitted to amend such provision7079   and such amendment shall be deemed approved by the Lenders if the Lenders shall have7080   received five Business Days’ prior written notice of such change and the Administrative Agent7081   shall not have received, within five Business Days of the date of such notice to the Lenders, a7082   written notice from the Required Lenders stating that the Required Lenders object to such7083   amendment.7084    





 







171   55802528_20   Notwithstanding any provision herein to the contrary, this Agreement may be amended7085   with the written consent of the Administrative Agent, the L/C Issuer and the Borrower to amend7086   the definition of “Alternative Currency” solely to add additional currency options and the7087   applicable interest rate with respect thereto, in each case solely to the extent permitted pursuant7088   to Section 1.11.7089   Section 11.02. Notices; Effectiveness; Electronic Communications.7090   (a) Notices Generally. Except in the case of notices and other7091   communications expressly permitted to be given by telephone (and except as provided in7092   subsection (b) below), all notices and other communications provided for herein shall be in7093   writing and shall be delivered by hand or overnight courier service, mailed by certified or7094   registered mail or sent by telecopier or electronic mail as follows, and all notices and other7095   communications expressly permitted hereunder to be given by telephone shall be made to the7096   applicable telephone number, as follows:7097   (i) if to any Credit Party, the Administrative Agent, the L/C Issuer or7098   the Swingline Lender, to the address, telecopier number, electronic mail address7099   or telephone number specified for such Person on Schedule 11.02 or as provided7100   pursuant to subsection (d) below; and7101   (ii) if to any other Lender, to the address, telecopier number, electronic7102   mail address or telephone number specified in its Administrative Questionnaire7103   (including, as appropriate, notices delivered solely to the Person designated by a7104   Lender on its Administrative Questionnaire then in effect for the delivery of7105   notices that may contain material non-public information relating to the Credit7106   Parties) or as provided pursuant to subsection (d) below.7107   Notices and other communications sent by hand or overnight courier service, or7108   mailed by certified or registered mail, shall be deemed to have been given when received;7109   notices and other communications sent by telecopier shall be deemed to have been given7110   when sent (except that, if not given during normal business hours for the recipient, shall7111   be deemed to have been given at the opening of business on the next Business Day for7112   the recipient). Notices and other communications delivered through electronic7113   communications to the extent provided in subsection (b) below shall be effective as7114   provided in such subsection (b).7115   (b) Electronic Communications. Notices and other communications to the7116   Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic7117   communication (including e-mail, FpML messaging, and Internet or intranet websites) pursuant7118   to procedures approved by the Administrative Agent, provided that the foregoing shall not apply7119   to notices to any Lender or the L/C Issuer pursuant to Article 2 if such Lender or the L/C Issuer,7120   as applicable, has notified the Administrative Agent that it is incapable of receiving notices7121   under such Article by electronic communication. The Administrative Agent or the Borrower7122   each may, in its discretion, agree to accept notices and other communications to it hereunder by7123   electronic communications pursuant to procedures approved by it, provided that approval of such7124   procedures may be limited to particular notices or communications.7125    





 







172   55802528_20   Unless the Administrative Agent otherwise prescribes, (i) notices and other7126   communications sent to an e-mail address shall be deemed received upon the sender’s receipt of7127   an acknowledgement from the intended recipient (such as by the “return receipt requested”7128   function, as available, return e-mail or other written acknowledgement), provided that if such7129   notice or other communication is not sent during the normal business hours of the recipient, such7130   notice or communication shall be deemed to have been sent at the opening of business on the7131   next Business Day for the recipient, and (ii) notices or communications posted to an Internet or7132   intranet website shall be deemed received upon the deemed receipt by the intended recipient at7133   its e-mail address as described in the foregoing clause (i) of notification that such notice or7134   communication is available and identifying the website address therefor.7135   (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS7136   AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE7137   ACCURACY OR COMPLETENESS OF THE CREDIT PARTY MATERIALS OR THE7138   ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR7139   ERRORS IN OR OMISSIONS FROM THE CREDIT PARTY MATERIALS. NO7140   WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY7141   WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-7142   INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR7143   OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH7144   THE CREDIT PARTY MATERIALS OR THE PLATFORM. In no event shall the7145   Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any7146   liability to the Borrower or any other Credit Party, any Lender, the L/C Issuer or any other7147   Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract7148   or otherwise) arising out of the Borrower’s or any other Credit Party’s or the Administrative7149   Agent’s transmission of Credit Party Materials through the Internet, except to the extent that7150   such losses, claims, damages, liabilities or expenses are determined by a court of competent7151   jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence,7152   bad faith or willful misconduct of such Agent Party; provided, however, that in no event shall7153   any Agent Party have any liability to the Borrower or any other Credit Party, any Lender, the7154   L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive7155   damages (as opposed to direct or actual damages).7156   (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent,7157   the L/C Issuer and the Swingline Lender may change its address, telecopier or telephone number7158   for notices and other communications hereunder by notice to the other parties hereto. Each other7159   Lender may change its address, telecopier or telephone number for notices and other7160   communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer7161   and the Swingline Lender. In addition, each Lender agrees to notify the Administrative Agent7162   from time to time to ensure that the Administrative Agent has on record (1) an effective address,7163   contact name, telephone number, telecopier number and electronic mail address to which notices7164   and other communications may be sent and (2) accurate wire instructions for such Lender.7165   Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such7166   Public Lender to at all times have selected the “Private Side Information” or similar designation7167   on the content declaration screen of the Platform in order to enable such Public Lender or its7168   delegate, in accordance with such Public Lender’s compliance procedures and applicable Law,7169   including United States federal and state securities Laws, to make reference to Credit Party7170    





 







173   55802528_20   Materials that are not made available through the “Public Side Information” portion of the7171   Platform and that may contain material non-public information with respect to the Borrower or7172   its securities for purposes of United States federal or state securities Laws.7173   (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The7174   Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any7175   notices (including telephonic Loan Notices) purportedly given by or on behalf of the Borrower or7176   any other Credit Party even if (1) such notices were not made in a manner specified herein, were7177   incomplete or were not preceded or followed by any other form of notice specified herein, or (2)7178   the terms thereof, as understood by the recipient, varied from any confirmation thereof. The7179   Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related7180   Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance7181   by such Person on each notice purportedly given by or on behalf of the Borrower or any other7182   Credit Party in the absence of gross negligence, bad faith or willful misconduct of such Person,7183   as determined by a court of competent jurisdiction in a final and non-appealable judgment. All7184   telephonic notices to and other telephonic communications with the Administrative Agent may7185   be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such7186   recording.7187   Section 11.03. No Waiver; Cumulative Remedies; Enforcement. No failure by any7188   Lender, the L/C Issuer, the Swingline Lender or the Administrative Agent to exercise, and no7189   delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall7190   operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power7191   or privilege hereunder or under any other Credit Document (including the imposition of the7192   Default Rate) preclude any other or further exercise thereof or the exercise of any other right,7193   remedy, power or privilege. The rights, remedies, powers and privileges herein provided and7194   provided under each other Credit Document are cumulative and not exclusive of any rights,7195   remedies, powers and privileges provided by Law.7196   Notwithstanding anything to the contrary contained herein or in any other Credit7197   Document, the authority to enforce rights and remedies hereunder and under the other Credit7198   Documents against the Credit Parties or any of them shall be vested exclusively in, and all7199   actions and proceedings at law in connection with such enforcement shall be instituted and7200   maintained exclusively by, the Administrative Agent in accordance with Section 9.02 for the7201   benefit of all the Lenders and the L/C Issuer; provided; that the foregoing shall not prohibit (i)7202   the Administrative Agent from exercising on its own behalf the rights and remedies that inure to7203   its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Credit7204   Documents, (ii) the L/C Issuer or the Swingline Lender from exercising the rights and remedies7205   that inure to their benefit (solely in their capacity as L/C Issuer or Swingline Lender, as the case7206   may be) hereunder and under the other Credit Documents, (iii) any Lender from exercising setoff7207   rights in accordance with Section 11.08 (subject to the terms of Section 2.12), or (iv) any Lender7208   from filing proofs of claim or appearing and filing pleadings on its own behalf during the7209   pendency of a proceeding relative to any Credit Party under any Debtor Relief Law and provided,7210   further, that if at any time there is no Person acting as Administrative Agent hereunder and under7211   the other Credit Documents, then (1) the Required Lenders shall have the rights otherwise7212   ascribed to the Administrative Agent pursuant to Section 9.02 and (2) in addition to the matters7213   set forth in clauses (i), (ii) and (iii) of the preceding proviso and subject to Section 2.12, any7214    





 







174   55802528_20   Lender may, with the consent of the Required Lenders, enforce any rights and remedies available7215   to it and as authorized by the Required Lenders.7216   Section 11.04. Expenses; Indemnity; Damage Waiver.7217   (a) Costs and Expenses. The Borrower shall pay (1) all reasonable and7218   documented out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent7219   and their respective Affiliates (including the reasonable and documented out-of-pocket fees,7220   charges and disbursements of one counsel for the Administrative Agent and the Collateral7221   Agent), in connection with the syndication of the credit facilities provided for herein, the7222   preparation, negotiation, execution, delivery and administration of this Credit Agreement and the7223   other Credit Documents or any amendments, modifications or waivers of the provisions hereof or7224   thereof (whether or not the transactions contemplated thereby shall be consummated), (2) all7225   reasonable and documented out-of-pocket expenses incurred by the L/C Issuer in connection7226   with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for7227   payment thereunder and (3) all reasonable and documented out-of-pocket expenses incurred by7228   the Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer in connection with7229   the enforcement or protection of its rights (a) in connection with this Credit Agreement and the7230   other Credit Documents, including its rights under this Section, or (b) in connection with the7231   Loans made or Letters of Credit issued hereunder, including all such reasonable and documented7232   out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of7233   such Loans or Letters of Credit (provided that with respect the fees and disbursements of7234   counsel, all such Persons shall be represented by one primary counsel and (x) any special counsel7235   and local counsel in each relevant jurisdiction retained by the Administrative Agent and (y)7236   solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to7237   the affected Person similarly situated, and for each of clauses (i) and (ii) herein, such amounts7238   shall be limited to those reasonable and documented out-of-pocket fees and actual disbursements7239   of such counsel).7240   (b) Indemnification by the Borrower. The Borrower shall indemnify the7241   Administrative Agent (and any sub-agent thereof), each Arranger, the Collateral Agent, each7242   Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such7243   Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and7244   all losses, claims, damages, liabilities and related out-of-pocket expenses (including the7245   reasonable and documented out-of-pocket fees, charges and disbursements of one counsel for all7246   Indemnitees), incurred by any Indemnitee or asserted against any Indemnitee by the Borrower,7247   any other Credit Party or any other Person arising out of, in connection with, or as a result of (i)7248   the execution, enforcement or delivery of this Credit Agreement, any other Credit Document or7249   any agreement or instrument contemplated hereby or thereby, the performance by the parties7250   hereto of their respective obligations hereunder or thereunder or the consummation of the7251   transactions contemplated hereby or thereby, the syndication of the credit facilities provided for7252   herein, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related7253   Parties only, the administration of this Credit Agreement and the other Credit Documents, (i) any7254   Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any7255   refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the7256   documents presented in connection with such demand do not strictly comply with the terms of7257   such Letter of Credit), (ii) any actual or alleged presence or Release of Hazardous Materials at,7258    





 







175   55802528_20   on, under or from any property currently or formerly owned, leased or operated by the Borrower7259   or any of its Restricted Subsidiaries or any of their respective predecessors, or any7260   Environmental Liability related in any way to the Borrower or any of its Restricted Subsidiaries,7261   or any of their respective predecessors, in each case relating to any of the foregoing or (iii) any7262   actual or prospective claim, litigation, investigation or proceeding relating to any of the7263   foregoing, whether based on contract, tort or any other theory, whether brought by a third party7264   or by the Borrower or any other Credit Party, and regardless of whether any Indemnitee is a party7265   thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE7266   OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE7267   NEGLIGENCE OF THE INDEMNITEE, nor shall any Indemnitee, Related Party, Credit7268   Party or any Subsidiary have any liability for any special, punitive, indirect or consequential7269   damages relating to this Agreement or any other Credit Document or arising out of its activities7270   in connection herewith or therewith (whether before or after the Closing Date) (other than, in the7271   case of any Credit Party, in respect of any such damages incurred or paid by an Indemnitee to a7272   third party, or which are included in a third-party claim); provided that such indemnity shall not,7273   as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or7274   related expenses (x) are determined by a court of competent jurisdiction by final and7275   nonappealable judgment to have resulted from the gross negligence, bad faith or willful7276   misconduct or material breach of such Person’s obligations under any Credit Document of such7277   Indemnitee or (y) result from a claim brought by the Borrower or any other Credit Party against7278   an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other7279   Credit Document, if the Borrower or other such Credit Party has obtained a final and7280   nonappealable judgment in its favor on such claim as determined by a court of competent7281   jurisdiction or (z) arise from disputes solely among Indemnitees, and in such event solely to the7282   extent that the underlying dispute does not (i) arise as a result of an action, inaction or7283   representation of, or information provided by or on behalf of, the Credit Parties or their7284   Subsidiaries or Affiliates as determined by a court of competent jurisdiction by a final and7285   nonappealable judgment, or (ii) relate to any action of such Indemnitee in its capacity as7286   Administrative Agent or Arranger; provided, further, that each Indemnitee shall promptly refund7287   any amount received pursuant to this Section to the extent that there is a final judicial or arbitral7288   determination that such Indemnitee was not entitled to indemnification rights with respect to7289   such payment pursuant to the express terms of this Section 11.04. This Section 11.04(b) shall7290   not apply with respect to Taxes other than any Taxes that represent losses, claims, and damages7291   arising from any non-Tax claim. Payments under this Section 11.04(b) shall be made by the7292   Borrower to the Administrative Agent for the benefit of the relevant Indemnitee.7293   (c) Reimbursement by Lenders. To the extent that the Borrower for any7294   reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to7295   be paid by them to the Administrative Agent (or any sub-agent thereof), the Collateral Agent, the7296   L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to7297   the Administrative Agent (or any such sub-agent), the Collateral Agent, the L/C Issuer or such7298   Related Party, as the case may be, such Lender’s pro rata share (determined in each case as of the7299   time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid7300   amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or7301   related expense, as the case may be, was incurred by or asserted against the Administrative7302   Agent (or any such sub-agent), the Collateral Agent, the L/C Issuer in its capacity as such, or7303   against any Related Party of any of the foregoing acting for the Administrative Agent (or any7304    





 







176   55802528_20   such sub-agent), the Collateral Agent or the L/C Issuer in connection with such capacity. The7305   obligations of the Lenders under this subsection (c) are subject to the provisions of Section7306   2.11(b).7307   (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by7308   applicable Law, no Credit Party shall assert, and hereby waives, any claim against any7309   Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as7310   opposed to direct or actual damages) arising out of, in connection with, or as a result of, this7311   Credit Agreement, any other Credit Document or any agreement or instrument contemplated7312   hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use7313   of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any7314   damages arising from the use by unintended recipients of any information or other materials7315   distributed by it through telecommunications, electronic or other information transmission7316   systems in connection with this Credit Agreement or the other Credit Documents or the7317   transactions contemplated hereby or thereby other than for such direct or actual damages7318   resulting from the gross negligence, bad faith or willful misconduct of such Indemnitee or from a7319   breach in bad faith of such Indemnitee’s obligations hereunder or under any Credit Document, in7320   any case, as determined by a final and nonappealable judgment of a court of competent7321   jurisdiction.7322   (e) Payments. All amounts due under this Section shall be payable not later7323   than 10 Business Days after demand therefor.7324   (f) Survival. The agreements in this Section shall survive the resignation of7325   the Administrative Agent, the L/C Issuer and the Swingline Lender, the replacement of any7326   Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or7327   discharge of all the other obligations hereunder or under any other Credit Document.7328   Section 11.05. Payments Set Aside. To the extent that any payment by or on behalf of the7329   Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the7330   Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such7331   payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared7332   to be fraudulent or preferential, set aside or required (including pursuant to any settlement7333   entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be7334   repaid to a trustee, receiver or any other party, in connection with any proceeding under any7335   Debtor Relief Law or otherwise, then to the extent of such recovery, the obligation or part7336   thereof originally intended to be satisfied shall be revived and continued in full force and effect7337   as if such payment had not been made or such setoff had not occurred, and each Lender and the7338   L/C Issuer severally agrees to pay to the Administrative Agent on demand its applicable share7339   (without duplication) of any amount so recovered from or repaid by the Administrative Agent,7340   plus interest thereon from the date of such demand to the date such payment is made at a rate per7341   annum equal to the applicable Overnight Rate from time to time in effect, in the applicable7342   currency of such recovery or payment. The obligations of the Lenders and the L/C Issuer under7343   clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the7344   termination of this Credit Agreement.7345   Section 11.06. Successors and Assigns.7346    





 







177   55802528_20   (a) Successors and Assigns Generally. The provisions of this Credit7347   Agreement and the other Credit Documents shall be binding upon and inure to the benefit of the7348   parties hereto and thereto and their respective successors and assigns permitted hereby, except7349   that neither the Borrower nor any other Credit Party may assign or otherwise transfer any of their7350   respective rights or obligations hereunder without the prior written consent of the Administrative7351   Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or7352   obligations hereunder except (i) to an Assignee pursuant to an assignment made in accordance7353   with the provisions of Section 11.06(b) (such an assignee, an “Eligible Assignee”), (ii) by way7354   of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by7355   way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of7356   this Section (and any other attempted assignment or transfer by any party hereto shall be null and7357   void). Nothing in this Credit Agreement, express or implied, shall be construed to confer upon7358   any Person (other than the parties hereto, their respective successors and assigns permitted7359   hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent7360   expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C7361   Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this7362   Credit Agreement.7363   (b) Assignments by Lenders. Any Lender may at any time assign to one or7364   more assignees (“Assignees”) all or a portion of its rights and obligations under this Credit7365   Agreement and the other Credit Documents (including all or a portion of its Commitment and the7366   Loans (including for purposes of this subsection (b), participations in L/C Obligations and in7367   Swingline Loans) at the time owing to it); provided that any such assignment shall be subject to7368   the following conditions:7369   (i) Minimum Amounts. (A) In the case of an assignment of the entire7370   remaining amount of the assigning Lender’s Commitment and the related Loans7371   at the time owing to it or in the case of an assignment to a Lender, an Affiliate of7372   a Lender or an Approved Fund, no minimum amount need be assigned and (B) in7373   any case not described in subsection (b)(i), the aggregate amount of the7374   Commitment (which for this purpose includes Loans outstanding thereunder) or,7375   if the Commitment is not then in effect, the principal outstanding balance of the7376   Loans of the assigning Lender subject to each such assignment, determined as of7377   the date the Assignment and Assumption with respect to such assignment is7378   delivered to the Administrative Agent or, if “Trade Date” is specified in the7379   Assignment and Assumption, as of the Trade Date, shall not be less than7380   $5,000,000 and integral multiples thereof (or if less, all of such Lender’s7381   remaining Loans or Commitments in respect of such Class), in the case of an7382   assignment of the Revolving Credit Commitments (and the Revolving Credit7383   Loans relating thereto), and $5,000,000 and integral multiples thereof, in the case7384   of an assignment of the Term Commitments (or, from and after the Closing Date,7385   the Term Loans); provided that concurrent assignments to members of an7386   Assignee Group and concurrent assignments from members of an Assignee Group7387   to a single Eligible Assignee (or to an Eligible Assignee and members of its7388   Assignee Group) will be treated as a single assignment for purposes of7389   determining whether such minimum amount has been met;7390    





 







178   55802528_20   (ii) Proportionate Amounts. Each partial assignment shall be made as7391   an assignment of a proportionate part of all the assigning Lender’s rights and7392   obligations under this Credit Agreement with respect to the Loans or the7393   Commitment assigned, except that this clause (ii) shall not (A) apply to the7394   Swingline Lender’s rights and obligations in respect of Swingline Loans or (B)7395   prohibit any Lender from assigning all or a portion of its rights and obligations7396   among separate Facilities on a non-pro rata basis;7397   (iii) Required Consents. No consent shall be required for any7398   assignment except to the extent required by subsection (b)(i) of this Section and,7399   in addition:7400   (A) the consent of the Borrower (such consent not to be7401   unreasonably withheld, conditioned or delayed) shall be required unless7402   (1) an Event of Default under Section 9.01(a) or (f) (solely with respect to7403   the Borrower) has occurred and is continuing at the time of such7404   assignment or (2) in the case of an assignment of Term Loans, such7405   assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;7406   provided that the Borrower shall be deemed to have consented to any such7407   assignment unless it shall object thereto by written notice to the7408   Administrative Agent within 10 Business Days after having received7409   notice thereof;7410   (B) the consent of the Administrative Agent (such consent not7411   to be unreasonably withheld, conditioned or delayed) shall be required for7412   assignments in respect of (1) the Revolving Credit Commitments (and the7413   Revolving Credit Loans relating thereto) if such assignment is to a Person7414   that is not a Lender with a Revolving Credit Commitment (for holding7415   Revolving Credit Loans), an Affiliate of such Lender or an Approved7416   Fund with respect to such Lender or (2) any Term Loan to a Person that is7417   not a Lender, an Affiliate of a Lender or an Approved Fund; and7418   (C) the consent of the Swingline Lender and the L/C Issuer7419   (such consents not to be unreasonably withheld, conditioned or delayed)7420   shall be required for any assignment in respect of the Revolving Credit7421   Commitments (and the Revolving Credit Obligations relating thereto).7422   (iv) Assignment and Assumption. The parties to each assignment shall7423   execute and deliver to the Administrative Agent an Assignment and Assumption,7424   together with a processing and recordation fee in the amount of $3,500 (other than7425   an assignment from a Lender to one or more of its Affiliates or pursuant to7426   Section 11.13); provided that the Administrative Agent may, in its sole discretion,7427   elect to waive such processing and recordation fee in the case of any assignment.7428   The assignee, if it is not a Lender, shall deliver to the Administrative Agent an7429   Administrative Questionnaire;7430    





 







179   55802528_20   (v) No Assignment to Certain Persons. No such assignment shall be7431   made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries,7432   except as set forth in Section 11.06(i), (B) to any Defaulting Lender or any of its7433   Subsidiaries, or any Person who, upon becoming a Lender hereunder, would7434   constitute any of the foregoing Persons described in this clause (iv), (C) to a7435   natural person or (D) to any Disqualified Institution; and7436   (vi) Certain Additional Payments. In connection with any assignment7437   of rights and obligations of any Defaulting Lender hereunder, no such assignment7438   shall be effective unless and until, in addition to the other conditions thereto set7439   forth herein, the parties to the assignment shall make such additional payments to7440   the Administrative Agent in an aggregate amount sufficient, upon distribution7441   thereof as appropriate (which may be outright payment, purchases by the assignee7442   of participations or subparticipations, or other compensating actions, including7443   funding, with the consent of the Borrower and the Administrative Agent, the7444   applicable pro rata share of Loans previously requested but not funded by the7445   Defaulting Lender, to each of which the applicable assignee and assignor hereby7446   irrevocably consent), to (x) pay and satisfy in full all payment liabilities then7447   owed by such Defaulting Lender to the Administrative Agent or any Lender7448   hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate)7449   its full pro rata share of all Loans and participations in Letters of Credit and7450   Swingline Loans in accordance with its Aggregate Commitment Percentage.7451   Notwithstanding the foregoing, in the event that any assignment of rights and7452   obligations of any Defaulting Lender hereunder shall become effective under7453   applicable Law without compliance with the provisions of this paragraph, then the7454   assignee of such interest shall be deemed to be a Defaulting Lender for all7455   purposes of this Credit Agreement until such compliance occurs.7456   Subject to acceptance and recording thereof by the Administrative Agent pursuant7457   to subsection (c) of this Section, from and after the effective date specified in each7458   Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this7459   Credit Agreement and, to the extent of the interest assigned by such Assignment and7460   Assumption, have the rights and obligations of a Lender under this Credit Agreement,7461   and the assigning Lender thereunder shall, to the extent of the interest assigned by such7462   Assignment and Assumption, be released from its obligations under this Credit7463   Agreement (and, in the case of an Assignment and Assumption covering all of the7464   assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall7465   cease to be a party hereto) but shall continue to be entitled to the benefits of Sections7466   3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the7467   effective date of such assignment. Upon request, the Borrower (at its expense) shall7468   execute and deliver a Note to the assignee Lender. Any assignment or transfer by a7469   Lender of rights or obligations under this Credit Agreement that does not comply with7470   this subsection shall be treated for purposes of this Credit Agreement as a sale by such7471   Lender of a participation in such rights and obligations in accordance with subsection (d)7472   of this Section.7473    





 







180   55802528_20   (c) Register. The Administrative Agent, acting solely for this purpose as an7474   agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the7475   Administrative Agent’s Office in the United States a copy of each Assignment and Assumption7476   delivered to it and a register for the recordation of the names and addresses of the Lenders, and7477   the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each7478   Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the7479   Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent7480   and the Lenders may treat each Person whose name is recorded in the Register pursuant to the7481   terms hereof as a Lender and the owner of the amounts owing to it under the Credit Documents7482   as reflected in the Register for all purposes of the Credit Documents, notwithstanding notice to7483   the contrary. In addition, the Administrative Agent shall maintain on the Register information7484   regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender.7485   The Register shall be available for inspection by any of the Borrower, the L/C Issuer and the7486   Lenders at any reasonable time and from time to time upon reasonable prior notice.7487   (d) Participations. Any Lender may at any time (without notice to, or the7488   consent of, any Person) sell participations to any Person (other than a natural person, a7489   Disqualified Institution, a Defaulting Lender or the Borrower or the Borrower’s Affiliates or7490   Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or7491   obligations under this Credit Agreement (including all or a portion of its Commitment and/or the7492   Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans)7493   owing to it); provided that (i) such Lender’s obligations under this Credit Agreement shall7494   remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for7495   the performance of such obligations and (iii) the Borrower, the Administrative Agent, the7496   Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in7497   connection with such Lender’s rights and obligations under this Credit Agreement.7498   Any agreement or instrument pursuant to which a Lender sells such a participation shall7499   provide that such Lender shall retain the sole right to enforce this Credit Agreement and to7500   approve any amendment, modification or waiver of any provision of this Credit Agreement;7501   provided that such agreement or instrument may provide that such Lender will not, without the7502   consent of the Participant, agree to any amendment, waiver or other modification described in7503   the second proviso of Section 11.01 that affects such Participant. Subject to subsection (e) of7504   this Section, the Borrower agree that each Participant shall be entitled to the benefits of Sections7505   3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by7506   assignment pursuant to subsection (b) of this Section; provided that such Participant agrees to be7507   subject to the provisions of Sections 3.06 as if it were an assignee under paragraph (b) of this7508   Section. To the extent permitted by Law, each Participant also shall be entitled to the benefits of7509   Section 11.08 as though it were a Lender, provided that such Participant agrees to be subject to7510   Section 2.12 as though it were a Lender.7511   (e) Limitations on Participant Rights. A Participant shall not be entitled to7512   receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have7513   been entitled to receive with respect to the participation sold to such Participant, unless the sale7514   of the participation to such Participant is made with the Borrower’s prior written consent. A7515   Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits7516   of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and7517    





 







181   55802528_20   such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as7518   though it were a Lender.7519   Each Lender that sells a participation shall, acting solely for this purpose as an agent of7520   the Borrower, maintain a register on which it enters the name and address of each Participant and7521   the principal amounts (and stated interest) of each Participant’s interest in the Loans or other7522   obligations under the Credit Documents (the “Participant Register”); provided that no Lender7523   shall have any obligation to disclose all or any portion of the Participant Register (including the7524   identity of any Participant or any information relating to a Participant’s interest in any7525   Commitments, Loans, Letters of Credit or of its other Obligations under any Credit Document)7526   to any Person except to the extent that such disclosure is necessary to establish that such7527   Commitment, Loan, Letter of Credit or other Obligation is in registered form under Section7528   5f.103-1(c) of the U.S. Treasury Regulations, or is otherwise required thereunder. The entries in7529   the Participant Register shall be conclusive absent manifest error, and such Lender shall treat7530   each Person whose name is recorded in the Participant Register as the owner of such7531   participation for all purposes of this Agreement notwithstanding any notice to the contrary. For7532   the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall7533   have no responsibility for maintaining a Participant Register.7534   (f) Certain Pledges. Any Lender may at any time pledge or assign a security7535   interest in all or any portion of its rights under this Credit Agreement (including under its7536   Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to7537   secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such7538   Lender; provided that no such pledge or assignment shall release such Lender from any of its7539   obligations hereunder or substitute any such pledgee or assignee for such Lender as a party7540   hereto.7541   (g) [Reserved].7542   (h) Resignation as L/C Issuer or Swingline Lender after Assignment.7543   Notwithstanding anything to the contrary contained herein, if at any time Bank of America7544   assigns all of its Revolving Credit Commitment and Revolving Credit Loans pursuant to7545   subsection (b) above. Bank of America may, (i) upon 30 days’ notice to the Borrower and the7546   Revolving Credit Lenders, resign as the L/C Issuer and/or (ii) upon 30 days’ notice to the7547   Borrower, resign as the Swingline Lender. In the event of any such resignation as the L/C Issuer7548   or the Swingline Lender, the Borrower shall be entitled to appoint from among the Revolving7549   Credit Lenders, a successor L/C Issuer or Swingline Lender hereunder; provided that no failure7550   by the Borrower to appoint any such successor shall affect the resignation of Bank of America as7551   the L/C Issuer or the Swingline Lender, as the case may be. If Bank of America resigns as the7552   L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder7553   with respect to all Letters of Credit outstanding as of the effective date of its resignation as the7554   L/C Issuer and all L/C Obligations with respect thereto (including the right to require the7555   Revolving Credit Lenders to make Base Rate Loans or fund risk participations in L/C7556   Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as the7557   Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder7558   with respect to Swingline Loans made by it and outstanding as of the effective date of such7559   resignation, including the right to require the Revolving Credit Lenders to make Base Rate Loans7560    





 







182   55802528_20   or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the7561   appointment of a successor L/C Issuer and/or Swingline Lender, (a) such successor shall succeed7562   to and become vested with all of the rights, powers, privileges and duties of the retiring L/C7563   Issuer or Swingline Lender, as the case may be, and (b) the successor L/C Issuer shall issue7564   letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such7565   succession or make other arrangements reasonable satisfactory to Bank of America to effectively7566   assume the obligations of Bank of America with respect to such Letters of Credit.7567   (i) Assignments to the Borrower and its Subsidiaries. Notwithstanding7568   anything to the contrary contained in this Section 11.06 or any other provision of this7569   Agreement, so long as no Event of Default has occurred and is continuing or would result7570   therefrom, each Term Lender shall have the right at any time to sell, assign or transfer all or a7571   portion of the Term Loans owing to it to the Borrower or any of its Subsidiaries on a non-pro7572   rata basis, subject to the following limitations:7573   (i) Such sale, assignment or transfer shall be pursuant to one or more7574   modified Dutch auctions conducted by the Borrower (each, an “Auction”) to7575   repurchase all or any portion of the Term Loans; provided that (A) notice of and7576   the option to participate in the Auction shall be provided to all Term Lenders and7577   (B) the Auction shall be conducted pursuant to such procedures as the Auction7578   Manager may establish, which are consistent with this Section 11.06(i) and the7579   Auction Procedures and are otherwise reasonably acceptable to the Borrower, the7580   Auction Manager and the Administrative Agent;7581   (ii) With respect to all repurchases made by the Borrower or any of its7582   Subsidiaries pursuant to this Section 11.06(i), (A) the Borrower shall (x) represent7583   and warrant to the Term Lenders that, as of the launch date of the related Auction7584   and the effective date of any such repurchase, it does not possess material non-7585   public information with respect to the Borrower and its Subsidiaries that has not7586   been disclosed to the Administrative Agent and the non-Public Lenders or (y)7587   make a statement that it cannot make such representation and warranty, (B) the7588   Borrower or any of its Subsidiaries shall not use the proceeds of any Revolving7589   Credit Loans to repurchase such Term Loans and (C) the assigning Term Lender7590   and the Borrower or its applicable Subsidiary shall execute and deliver to the7591   Auction Manager an Assignment and Assumption with respect to such7592   repurchase; and7593   (iii) Following a repurchase by the Borrower or any of its Subsidiaries7594   pursuant to this Section 11.06(i), the Term Loans so repurchased shall, without7595   further action by any Person, be deemed canceled and no longer outstanding (and7596   may not be resold by the Borrower or any of its Subsidiaries) for all purposes of7597   this Credit Agreement and all other Credit Documents, including, but not limited7598   to (A) the making of, or the application of, any payments to the Term Lenders7599   under this Credit Agreement or any other Credit Document, (B) the making of any7600   request, demand, authorization, direction, notice, consent or waiver under this7601   Credit Agreement or any other Credit Document or (C) the determination of the7602   Required Lenders or the Required Term Lenders, or for any similar or related7603    





 







183   55802528_20   purpose, under this Credit Agreement or any other Credit Document. If any Term7604   Loan is purchased and canceled in accordance with this Section 11.06(i), all such7605   prepayments shall be applied to the remaining scheduled installments of principal7606   of the relevant Class of Term Loans pursuant to Section 2.05(a) on a pro rata basis7607   across such installments. In connection with any Term Loans repurchased and7608   canceled pursuant to this Section 11.06(i), the Administrative Agent is authorized7609   to make appropriate entries in the Register to reflect any such cancellation.7610   (j) If any assignment is made to any Disqualified Institution without the7611   Borrower’s prior consent in violation of clause (b)(v) above, the Borrower may, at its sole7612   expense and effort, upon notice to the applicable Disqualified Institution and the Administrative7613   Agent, notwithstanding anything to the contrary in Section 2.07 or Section 2.12, (A) terminate7614   any Revolving Credit Commitment of such Disqualified Institution and repay all Obligations of7615   the Borrower owing to such Disqualified Institution in connection with such Revolving Credit7616   Commitment, (B) in the case of outstanding Term Loans held by Disqualified Institutions,7617   prepay such Term Loan by paying the lesser of (x) the principal amount thereof and (y) the7618   amount that such Disqualified Institution paid to acquire such Term Loans, in each case plus7619   accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it7620   hereunder and under the other Credit Documents and/or (C) require such Disqualified Institution7621   to assign and delegate, without recourse (in accordance with and subject to the restrictions7622   contained in this Section 11.06), all of its interest, rights and obligations under this Agreement7623   and related Credit Documents to an Eligible Assignee that shall assume such obligations at the7624   lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution7625   paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued7626   fees and all other amounts (other than principal amounts) payable to it hereunder and other the7627   other Credit Documents; provided that (i) such assignment does not conflict with applicable7628   Laws and (ii) in the case of clause (B), the Borrower shall not use the proceeds from any Loans7629   to prepay Term Loans held by Disqualified Institutions.7630   (k) Notwithstanding anything to the contrary contained in this Agreement, the7631   Disqualified Institutions (A) will not (x) have the right to receive information, reports or other7632   materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender,7633   (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z)7634   access any electronic site established for the Lenders or confidential communications from7635   counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for7636   purposes of any consent to any amendment, waiver or modification of any action under, and for7637   the purpose of any direction to the Administrative Agent or any Lender to undertake any action7638   (or refrain from taking any action) under this Agreement or any other Credit Document, each7639   Disqualified Institution will be deemed to have consented in the same proportion as the Lenders7640   that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on7641   any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (a7642   “Reorganization Plan”) each Disqualified Institution party hereto hereby agrees (1) not to vote7643   on such Reorganization Plan, (2) if such Disqualified Institution does vote on such7644   Reorganization Plan notwithstanding the restriction in the foregoing clause (1), such vote will be7645   deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the7646   Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall7647   not be counted in determining whether the applicable class has accepted or rejected such7648    





 







184   55802528_20   Reorganization Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar7649   provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a7650   determination by the Bankruptcy Court (or other applicable court of competent jurisdiction)7651   effectuating the foregoing clause (2).7652   Section 11.07. Treatment of Certain Information; Confidentiality. Each of the7653   Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of7654   the Information (as defined below), except that Information may be disclosed to its Affiliates and7655   to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees,7656   advisors and representatives (it being understood that the Persons to whom such disclosure is7657   made will be informed of the confidential nature of such Information and instructed to keep such7658   Information confidential), to the extent requested by any regulatory authority purporting to have7659   jurisdiction over it (including any self-regulatory authority), to the extent required by applicable7660   Laws or regulations or by any subpoena or similar legal process (in which case such Person, to7661   the extent practicable and so long as it is permitted by Law and except in connection with any7662   order or request as part of a regulatory examination or audit, agrees to inform the Borrower7663   promptly thereof), to any other party hereto, in connection with the exercise of any remedies7664   hereunder or under any other Credit Document or any action or proceeding relating to this Credit7665   Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder,7666   subject to an agreement containing provisions substantially the same as those of this Section, to7667   (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its7668   rights or obligations under this Credit Agreement or any Eligible Assignee invited to become a7669   Lender pursuant to Section 11.06(b), (ii) any actual or prospective counterparty (or its advisors)7670   to any swap or derivative transaction relating to the Borrower and its obligations, with the7671   consent of the Borrower or to the extent such Information, (iii) becomes publicly available other7672   than as a result of a breach of this Section, (iv) to the extent that such information is7673   independently developed by the Administrative Agent, a Lender, L/C Issuer or such parties7674   Affiliates, in each case, so long as not based on information obtained in a manner that would7675   otherwise violate this provision, (v) becomes available to the Administrative Agent, any Lender,7676   the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other7677   than the Borrower or (vi) with the Borrower’s consent.7678   For purposes of this Section, “Information” means all information received from the7679   Credit Parties or their Subsidiaries or Affiliates relating to the Credit Parties or their Subsidiaries7680   or Affiliates or any of their respective businesses, other than any such information that is7681   available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis7682   prior to disclosure by the Credit Parties or their Subsidiaries or Affiliates; provided that all7683   information received after the Closing Date from the Borrower or any of its Subsidiaries shall be7684   deemed confidential unless such information is clearly identified at the time of delivery as not7685   being confidential. Any Person required to maintain the confidentiality of Information as7686   provided in this Section shall be considered to have complied with its obligation to do so if such7687   Person has exercised the same degree of care to maintain the confidentiality of such Information7688   as such Person would accord to its own confidential information.7689   Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a)7690   the Information may include material non-public information concerning the Credit Parties or7691   their Subsidiaries or Affiliates, as the case may be, (b) it has developed compliance procedures7692    





 







185   55802528_20   regarding the use of material non-public information and (c) it will handle such material non-7693   public information in accordance with applicable Law, including federal and state securities7694   Laws.7695   Section 11.08. Right of Setoff. If an Event of Default shall have occurred and be7696   continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby7697   authorized at any time and from time to time, to the fullest extent permitted by applicable Law,7698   to set off and apply any and all deposits (general or special, time or demand, provisional or final,7699   in whatever currency) at any time held and other obligations (in whatever currency) at any time7700   owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of7701   the Borrower or any other Credit Party against any and all of the obligations of the Borrower or7702   such Credit Party now or hereafter existing under this Credit Agreement or any other Credit7703   Document to such Lender or the L/C Issuer, irrespective of whether or not the Lender or the L/C7704   Issuer shall have made any demand under this Credit Agreement or any other Credit Document7705   and although such obligations of the Borrower or such Credit Party may be contingent or7706   unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the7707   branch or office holding such deposit or obligated on such indebtedness; provided that in the7708   event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off7709   shall be paid over immediately to the Administrative Agent for further application in accordance7710   with the provisions of Section 2.17 and, pending such payment, shall be segregated by such7711   Defaulting Lender from its other funds and deemed held in trust for the benefit of the7712   Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to7713   the Administrative Agent a statement describing in reasonable detail the Obligations owing to7714   such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender,7715   the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and7716   remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective7717   Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the7718   Administrative Agent promptly after any such setoff and application; provided that the failure to7719   give such notice shall not affect the validity of such setoff and application.7720   Section 11.09. Interest Rate Limitation. Notwithstanding anything to the contrary7721   contained in any Credit Document, the interest paid or agreed to be paid under the Credit7722   Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable7723   Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in7724   an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal7725   of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining7726   whether the interest contracted for, charged, or received by the Administrative Agent or a Lender7727   exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law,7728   characterize any payment that is not principal as an expense, fee, or premium rather than interest,7729   exclude voluntary prepayments and the effects thereof, and amortize, prorate, allocate, and7730   spread in equal or unequal parts the total amount of interest throughout the contemplated term of7731   the Obligations hereunder.7732   Section 11.10. Counterparts; Integration. This Credit Agreement may be executed in7733   counterparts (and by different parties hereto in different counterparts), each of which shall7734   constitute an original, but all of which when taken together shall constitute a single contract.7735   This Credit Agreement and the other Credit Documents constitute the entire contract among the7736    





 







186   55802528_20   parties relating to the subject matter hereof and supersede any and all previous agreements and7737   understandings, oral or written, relating to the subject matter hereof. Delivery of an executed7738   counterpart of a signature page of this Credit Agreement by telecopy or other electronic imaging7739   means shall be effective as delivery of a manually executed counterpart of this Credit7740   Agreement.7741   Section 11.11. Survival of Representations and Warranties. All representations and7742   warranties made hereunder and in any other Credit Document or other document delivered7743   pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and7744   delivery hereof and thereof. Such representations and warranties have been or will be relied7745   upon by the Administrative Agent and each Lender, regardless of any investigation made by the7746   Administrative Agent or any Lender or on their behalf and notwithstanding that the7747   Administrative Agent or any Lender may have had notice or knowledge of any Default or Event7748   of Default at the time of any Credit Extension, and shall continue in full force and effect as long7749   as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied (other than any7750   Obligations under any Swap Contract Obligation, Treasury Management Obligation or7751   contingent indemnity obligations, in any such case not then due and payable) or any Letter of7752   Credit shall remain outstanding (unless the such Letter of Credit has been Cash Collateralized or7753   back-stopped by a letter of credit in form, amount and substance reasonably satisfactory to the7754   Administrative Agent or a deemed reissuance under another facility or as to which other7755   arrangements reasonable satisfactory to the Administrative Agent and the L/C Issuer shall have7756   been made).7757   Section 11.12. Severability. If any provision of this Credit Agreement or the other Credit7758   Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability7759   of the remaining provisions of this Credit Agreement and the other Credit Documents shall not7760   be affected or impaired thereby and the parties shall endeavor in good faith negotiations to7761   replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect7762   of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.7763   The invalidity of a provision in a particular jurisdiction shall not invalidate or render7764   unenforceable such provision in any other jurisdiction. Without limiting the foregoing7765   provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in7766   this Credit Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as7767   determined in good faith by the Administrative Agent, the L/C Issuer or the Swingline Lender, as7768   applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.7769   Section 11.13. Replacement of Lenders. If (a) any Lender requests compensation under7770   Section 3.04, (b) the Borrower is required to pay any additional amount to any Lender or any7771   Governmental Authority for the account of any Lender pursuant to Section 3.01, (c) any Lender7772   gives a notice pursuant to Section 3.02, (d) any Lender does not consent to a proposed change,7773   waiver, discharge or termination (a “Non-Consenting Lender”) with respect to any Credit7774   Document requiring the approval of all the Lenders or of all the Lenders directly affected thereby7775   that has been approved by the applicable Required Facility Lenders or, to the extent applicable,7776   the Required Lenders, or (e) any Lender is a Defaulting Lender, then the Borrower may, at its7777   sole expense and effort, upon notice to such Lender and the Administrative Agent, require such7778   Lender to assign and delegate, without recourse (in accordance with and subject to the7779   restrictions contained in, and consents required by, Section 11.06), (i) all of such Lender’s7780    





 







187   55802528_20   interests, rights and obligations under this Credit Agreement and the related Credit Documents,7781   or (ii) solely in the case of a Non-Consenting Lender, all of such Lender’s Class of Loans with7782   respect to which such Lender is a Non-Consenting Lender, in each case to an assignee that shall7783   assume such obligations (which assignee may be another Lender, if a Lender accepts such7784   assignment); provided that:7785   (i) the Borrower shall have paid to the Administrative Agent the7786   assignment fee specified in Section 11.06(b)(iv);7787   (ii) such Lender shall have received payment of an amount equal to the7788   outstanding principal of its Loans and L/C Advances, accrued interest thereon,7789   accrued fees and all other amounts payable to it hereunder and under the other7790   Credit Documents (including any amounts under Section 3.05) that is to be7791   assigned hereunder from the assignee (to the extent of such outstanding principal7792   and accrued interest and fees) or the Borrower (in the case of all other amounts);7793   (iii) in the case of any such assignment resulting from a claim for7794   compensation under Section 3.04 or payments required to be made pursuant to7795   Section 3.01, such assignment will result in a reduction in such compensation or7796   payments thereafter;7797   (iv) such assignment does not conflict with applicable Law;7798   (v) in the case of any such assignment resulting from a Non-7799   Consenting Lender’s failure to consent to a proposed change, waiver, discharge or7800   termination with respect to any Credit Document, the applicable assignee7801   consents to the proposed change, waiver, discharge or termination; and7802   (vi) the failure by any Lender described in clauses (a) – (e) above to7803   execute and deliver an Assignment and Assumption shall not impair the validity7804   of the removal of such Lender, and the assignment of such Lender’s7805   Commitments and outstanding Loans and participations in L/C Obligations and7806   Swingline Loans pursuant to this Section 11.13 shall nevertheless be effective7807   without the execution by such Lender of an Assignment and Assumption.7808   A Lender shall not be required to make any such assignment or delegation if, prior7809   thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the7810   Borrower to require such assignment and delegation cease to apply.7811   Section 11.14. Governing Law; Jurisdiction; Etc.7812   (a) GOVERNING LAW. THIS CREDIT AGREEMENT AND ANY CLAIM,7813   CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CREDIT7814   AGREEMENT (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT7815   LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY,7816   AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW7817   YORK.7818    





 







188   55802528_20   (b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO7819   IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS7820   PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF7821   NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED7822   STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF SUCH STATE AND7823   ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING7824   ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER7825   CREDIT DOCUMENT, AND, SUBJECT TO THE LAST SENTENCE OF THIS CLAUSE (B),7826   EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES7827   THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL BE7828   BROUGHT, HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO7829   THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL7830   COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN7831   ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE7832   ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY7833   OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS CREDIT AGREEMENT OR7834   IN ANY OTHER CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT THE7835   ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE7836   HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS CREDIT7837   AGREEMENT OR ANY OTHER CREDIT DOCUMENT AGAINST THE BORROWER OR7838   ANY OTHER CREDIT PARTY OR ITS PROPERTIES IN THE COURTS OF ANY7839   JURISDICTION.7840   (c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND7841   UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY7842   APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO7843   THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR7844   RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN7845   ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE7846   PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT7847   PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM7848   TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.7849   (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY7850   CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN7851   SECTION 11.02. NOTHING IN THIS CREDIT AGREEMENT WILL AFFECT THE RIGHT7852   OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED7853   BY APPLICABLE LAW.7854   Section 11.15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY7855   IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE7856   LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL7857   PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS7858   CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE7859   TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON7860   CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES7861   THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS7862    





 







189   55802528_20   REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD7863   NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER7864   AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE7865   BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT AND THE OTHER7866   CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND7867   CERTIFICATIONS IN THIS SECTION.7868   Section 11.16. USA Patriot Act Notice. Each Lender that is subject to the Act (as7869   hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)7870   hereby notifies the Credit Parties that pursuant to the requirements of the USA Patriot Act (Title7871   III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain,7872   verify and record information that identifies the Credit Parties, which information includes the7873   name and address of the Credit Parties and other information that will allow such Lender or the7874   Administrative Agent, as applicable, to identify the Credit Parties in accordance with the Act.7875   The Credit Parties shall, promptly following a request by the Administrative Agent or any7876   Lender, provide all reasonable documentation and other information that the Administrative7877   Agent or such Lender requests in order to comply with its ongoing obligations under applicable7878   “know your customer” and anti-money laundering rules and regulations, including the Act.7879   Section 11.17. Termination. Notwithstanding any other provision to the contrary, upon7880   termination of the commitments hereunder and payment in full of all Obligations (other than (i)7881   contingent indemnification obligations as to which no claim has been asserted and (ii)7882   Obligations described in clauses (b) and (c) of the definition thereof) and the expiration or7883   termination of all Letters of Credit (other than Letters of Credit as to which other arrangements7884   reasonable satisfactory to the Administrative Agent and the L/C Issuer shall have been made),7885   the Collateral Documents and the security interests created thereby shall terminate, all rights in7886   the Collateral shall revert to the applicable Credit Party and the Administrative Agent and the7887   Collateral Agent, at the request and sole expense of the Borrower, will execute and deliver such7888   documents as the Borrower shall reasonably request to evidence such termination; provided that7889   if an Event of Default shall have occurred and is continuing, no such termination will be7890   effective unless arrangements reasonable satisfactory to the holders of the Swap Contract7891   Obligations and Treasury Management Obligations shall have been made, and will not affect7892   provisions which expressly survive termination.7893   Section 11.18. No Advisory or Fiduciary Responsibility. In connection with all aspects of7894   each transaction contemplated hereby (including in connection with any amendment, waiver or7895   other modification hereof or of any other Credit Document), the Borrower and each other Credit7896   Party acknowledge and agree, and acknowledge their respective Affiliates’ understanding, that:7897   (i) the arranging and other services regarding this Credit Agreement provided by the7898   Administrative Agent and the Arrangers are arm’s-length commercial transactions between the7899   Borrower, each other Credit Party and their respective Affiliates, on the one hand, and the7900   Administrative Agent and the Arrangers, on the other hand, (ii) each of the Borrower and the7901   other Credit Parties has consulted its own legal, accounting, regulatory and tax advisors to the7902   extent it has deemed appropriate, and (iii) each of the Borrower and each other Credit Party is7903   capable of evaluating, and understands and accepts, the terms, risks and conditions of the7904   transactions contemplated hereby and by the other Credit Documents; the Administrative Agent,7905   each Arranger and each Lender each is and has been acting solely as a principal and, except as7906    





 







190   55802528_20   expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as7907   an advisor, agent or fiduciary for the Borrower, any other Credit Party or any of their respective7908   Affiliates, or any other Person and the Administrative Agent, the Arrangers and the Lenders shall7909   not have any obligation to the Borrower, any other Credit Party or any of their respective7910   Affiliates with respect to the transactions contemplated hereby except those obligations expressly7911   set forth herein and in the other Credit Documents; and the Administrative Agent, the Arrangers7912   and the Lenders and their respective Affiliates may be engaged in a broad range of transactions7913   that involve interests that differ from those of the Borrower, the other Credit Parties and their7914   respective Affiliates, and the Administrative Agent, the Arrangers and the Lenders shall not have7915   any obligation to disclose any of such interests to the Borrower, any other Credit Party or any of7916   their respective Affiliates. To the fullest extent permitted by Law, each of the Borrower and the7917   other Credit Parties hereby waives and releases any claims that it may have against the7918   Administrative Agent, the Arrangers and the Lenders with respect to any breach or alleged7919   breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated7920   hereby.7921   Section 11.19. Electronic Execution. The words “execution,” “signed,” “signature,” and7922   words of like import in in connection with this Agreement and the transaction contemplated7923   hereby (including, without limitation any Assignment and Assumption, amendment or other7924   modifications, Loan Notices, waivers and consent) shall be deemed to include electronic7925   signatures or the keeping of records in electronic form, each of which shall be of the same legal7926   effect, validity or enforceability as a manually executed signature or the use of a paper-based7927   recordkeeping system, as the case may be, to the extent and as provided for in any applicable7928   Law, including the Federal Electronic Signatures in Global and National Commerce Act, the7929   New York State Electronic Signatures and Records Act, or any other similar state Laws based on7930   the Uniform Electronic Transactions Act.7931   Section 11.20. Acknowledgment and Consent to Bail-In of EEA Financial Institutions.7932   Notwithstanding anything to the contrary in any Credit Document or in any other agreement,7933   arrangement or understanding among any such parties, each party hereto acknowledges that any7934   liability of any EEA Financial Institution arising under any Credit Document, to the extent such7935   liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA7936   Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:7937   (a) the application of any Write-Down and Conversion Powers by an EEA7938   Resolution Authority to any such liabilities arising hereunder which may be payable to it by any7939   party hereto that is an EEA Financial Institution; and7940   (b) the effects of any Bail-In Action on any such liability, including, if7941   applicable:7942   (i) a reduction in full or in part or cancellation of any such liability;7943   (ii) a conversion of all, or a portion of, such liability into shares or7944   other instruments of ownership in such EEA Financial Institution, its parent7945   entity, or a bridge institution that may be issued to it or otherwise conferred on it,7946   and that such shares or other instruments of ownership will be accepted by it in7947    





 







191   55802528_20   lieu of any rights with respect to any such liability under this Agreement or any7948   other Credit Document; or7949   (iii) the variation of the terms of such liability in connection with the7950   exercise of the write-down and conversion powers of any EEA Resolution7951   Authority.7952   Section 11.21. Judgment Currency. If, for the purposes of obtaining judgment in any7953   court, it is necessary to convert a sum due hereunder or any other Credit Document in one7954   currency into another currency, the rate of exchange used shall be that at which in accordance7955   with normal banking procedures the Administrative Agent could purchase the first currency with7956   such other currency on the Business Day preceding that on which final judgment is given. The7957   obligation of each Credit Party in respect of any such sum due from it to the Administrative7958   Agent or any Lender hereunder or under the other Credit Documents shall, notwithstanding any7959   judgment in a currency (the “Judgment Currency”) other than that in which such sum is7960   denominated in accordance with the applicable provisions of this Agreement (the “Agreement7961   Currency”), be discharged only to the extent that on the Business Day following receipt by the7962   Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in7963   the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in7964   accordance with normal banking procedures purchase the Agreement Currency with the7965   Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum7966   originally due to the Administrative Agent or any Lender from any Credit Party in the7967   Agreement Currency, such Credit Party agrees, as a separate obligation and notwithstanding any7968   such judgment, to indemnify the Administrative Agent or such Lender, as the case may be,7969   against such loss. If the amount of the Agreement Currency so purchased is greater than the sum7970   originally due to the Administrative Agent or any Lender in such currency, the Administrative7971   Agent or such Lender, as the case may be, agrees to return the amount of any excess to such7972   Credit Party (or to any other Person who may be entitled thereto under applicable Law).7973   [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]7974    





 







55802528_20   IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be7975   duly executed as of the date first above written.7976   7977   Borrower7978   7979   7980   MERCURY SYSTEMS, INC.7981   7982   7983   By:___________________________________7984   Name:7985   Title:7986   7987   7988   7989    





 







55802528_20   Guarantors7990   7991   7992   MERCURY DEFENSE SYSTEMS, INC.7993   By:7994   Name: Gerald M. Haines II7995   Title: Vice President, Chief Financial7996   Officer, Treasurer, and Secretary7997   MICROSEMI LLC – RF INTEGRATED7998   SOLUTIONS7999   By:8000   Name: Gerald M. Haines II8001   Title: Executive Vice President, Chief8002   Financial Officer, Treasurer, and8003   Secretary8004   MICROSEMI CORP. – SECURITY SOLUTIONS8005   By:8006   Name: Gerald M. Haines II8007   Title: Executive Vice President, Chief8008   Financial Officer, Treasurer, and8009   Secretary8010   MICROSEMI CORP. – MEMORY AND STORAGE8011   SOLUTIONS8012   By:8013   Name: Gerald M. Haines II8014   Title: Executive Vice President, Chief8015   Financial Officer, Treasurer, and8016   Secretary8017   8018   8019   8020   8021   8022    





 







[Credit Agreement]   55802528_20   ARXAN RESEARCH, INC.8023   By:8024   Name: Gerald M. Haines II8025   Title: Executive Vice President, Chief8026   Financial Officer, Treasurer, and8027   Secretary8028    





 







[Credit Agreement]   55802528_20   Administrative Agent8029   8030   8031   BANK OF AMERICA, N.A.,8032   as Administrative Agent and Collateral Agent8033   8034   8035   By: ___________________________________8036   Name:8037   Title:8038   8039   8040   8041    





 







[Credit Agreement]   55802528_20   BANK OF AMERICA, N.A.,8042   as L/C Issuer and Swingline Lender8043   8044   8045   By: ___________________________________8046   Name:8047   Title:8048    





 







[Credit Agreement]   55802528_20   Lenders8049   8050   8051   [LENDERS],8052   8053   8054   By: ___________________________________8055   Name:8056   Title8057